Conway v. Farish-Stafford Co.

Headnote

Conway v. Farish-Stafford Co., 170 App. Div. 903 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial. The Appellate Division held: “ In the form in which this action was brought, it was for compensation under a contract for services and on that ground we affirmed the order of reference against the defendant’s insistence that it was entitled to a trial by jury ( 153 App. Div. 906 ). The referee, however, having in the course of the trial allowed the complaint to be amended so as to claim damages for breach of contract, proceeded over defendant’s objection and exception to report upon the whole case including that introduced by the amendment allowed by him. He thus awarded plaintiff $20,000 damages, but stated that to hold the complaint as one for services would necessitate a finding for defendant. Having held that the complaint originally alleged a cause of action for compensation and as counsel for plaintiff then conceded, for compensation only, also that the referee was without power to allow an amendment changing the complaint ( 157 App. Div. 481 ), we cannot sustain the judgment wherein plaintiff’s recovery is wholly .for a non-referable cause of action.”