Schermerhorn v. Wood

By the court, Cardozo, J. I think the order made by Judge" Daly, and the term5s which he imposed-, rested in "his [317] discretion, and that, therefore, no appeal lies. Even after the amendment, the cause was referable in its nature, and when "that is so, the question of terms in all respects, ! which, of course, includes whether the court should make ¡ it a condition of allowing the amendment that the order l of reference be discharged, is addressed exclusively to the discretion of the judge to whom the application for the amendment is made. It is only when a party is. deprived of that to which he has a strict legal right, that an order allowing an amendment is reviewable. In this case, the. defendant has not a strict, legal, absolute right, either tó costs of the action since" the first answer, ‘or to'a jury trial. The cases of. Atiaben agt. Wakeman (10 Abb. P. R. p. 162), and Union Rank agt. Mott (19 How. P. R. p. 267), are not inconsistent with these views. In each of those cases' the defendant was permitted to add a new and distinct cause of' action to the complaint without being required to serve a copy of the amended pleading on the defendant, and with-, out allowing him twenty days to answer. The court in each case held that the right to be served with a copy of the amended complaint, and to answer it in twenty days, was a statutory one, of which the. defendants could not be deprived, and as the orders of the special term did deprive them of that right, they were held to be appealable. But in the present instance, the-plaintiff has not been deprived of any statutory right, or of anything to which he has an absolute legal claim. If the plaintiff was entitled by statute to all the costs of the action, or. if after the amendment the action would not have been referable in its nature, them the cases relied on by the appellant would have been analogous. But whether all the costs or only part, or none should be allowed, and whether - the case presented such difficult questions of lhw or fact as made it improper to refer it, and whether the issue of payment .should first be tried by a jury, and if found adversely to the defendant, a reference then ordered, were all mere questions of prac [318] tice, which were addressed to the discretion of the learned judge below, and whose action upon them is not reviewable. Appeal dismissed, with costs.