Majority
p. 572CONWAY v. FARISH-STAFFORD CO. (Supreme Court, Appellate Division, Second Department. June 20, 1913.) Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.
Headnote
1. Reference (§ 58[1] )—Power of Referee to Allow Amendments.A referee cannot allow an amendment to the complaint which has the effect of changing the cause of action or adding a cause of action.
[Ed. Note.—For other eases, see Reference, Cent. Dig. §§ 89, 90; Dec. Dig. § 58.*]
2. Appeal and Error (§ 107*)—Reference (§ 31*)—Decisions Reviewable—
Right to Reference.
Where a complaint is amended at Special Term, the question whether after amendment the entire action is referable may be reviewed either by a renewal of the motion to vacate the order of reference or by an appeal from the order referring or refusing to refer.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 735-739; Dec. Dig. §107;* Reference, Cent. Dig. §§ 57, 58; Dec. Dig. § 31.*]
Appeal from Special Term, Queens County.
Action by John P. Conway against the Farish-Stafford Company. From an order denying a motion to vacate an order of reference, defendant appeals. Order affirmed.
See, also, 153 App. Div. 906 , 137 N. Y. Supp. 1116 .
David Leventritt, of New York City, for appellant.
Martin L. Stover, of New York City (Edwin Blumenstiel, of New York City, on the brief), for respondent.
In the form in which this action was originally brought it was for compensation under the contract, and was clearly referable.
[1] If the amendment to the complaint which the referee allowed had the effect of changing the cause of action to one for damages for breach of the contract, or of adding to the original causé of action for compensation a second cause of action for such damages, such amendment was not within the power of the referee to grant. Perry v. Dickerson, 85 N. Y. 345 , 39 Am. Rep. 663 . If plaintiff is entitled thereto, as to which we express no opinion, application therefor must be made to the Special Term. We may consider the complaint therefore as. not effectively amended.
p. 573
[2] If the amendment is made at the Special Term, either by entirely changing the form of the action or by adding an additional cause of action, the question whether, after such amendment, the entire action or either cause thereof is referable may be reviewed either by a renewal of the motion to vacate the order of reference, or by an appeal from the order referring or refusing to refer' said second cause of action, if the amendment takes that form.
Order affirmed, with $10 costs and disbursements.
Cases cited
- Perry v. Dickerson 85 N. Y. 345 p. 572