Collins v. St. Lawrence Club — 108 N.Y.S. 287

Majority

p. 287

(123 App. Div. 207.)

COLLINS v. ST. LAWRENCE CLUB.

(Supreme Court, Appellate Division, Fourth Department.

January 8, 1908.)

Headnote

Reference—Powers of Referee—Amendment During Trial.

Where a cause was referred to a referee for determination, he had no power during the progress of the trial to permit an amendment by way of counterclaim to defendant’s answer, and his action in so doing was reversible error.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Reference, § 90.1

Appeal from Trial Term, Onondago County.

Action by Edwin Collins against the St. Lawrence Club. From a judgment in favor of defendant upon a counterclaim, plaintiff appeals, Reversed, and new trial granted.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

William L. Barnum, for appellant.

.. William E. Hodge, for respondent.

During the progress of the trial, and after considerable testimony had been taken for plaintiff, the referee on defendant’s application permitted it to amend its answer by setting up a counterclaim to the cause of action which plaintiff had pleaded. Plaintiff duly objected to the amendment, and excepted to its allowance by the referee. The referee has found for defendant and against the plaintiff the full amount of the counterclaim, and the result of the action was materially changed thereby. The referee had no power to grant this amendment, and plaintiff’s exception thereto presents reversible error. Mitchell v. Bunn, 2 Thomp. & C. 486.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.