Kimbel v. Mason — 16 N.Y.S. 72

Majority

p. 72

Kimbel et al. v. Mason.

(Supreme Court, General Term, First Department.

October 16, 1891.)

Headnote

Pleading—Amendment—Reference—Issue.

In an action for goods sold and labor done, when the complaint alleges a promise to pay a specified price therefor, and also alleges an account stated, the court has no power to direct an amendment by striking out all allegations as to account stated, requiring plaintiff to proceed solely on the count for goods sold and labor done, and at the same time to order a reference; for defendant has aright to plead to the new cause of action on a quantum meruit introduced by this amendment.

Appeal from special term, Yew York county.

Action by Anton Kimbel, Anton Kimbel, Jr., and Henry Kimbel against John Mason. The complaint sought to recover for goods sold and delivered

p. 73

and work done, for which it alleged defendant promised to pay an agreed price and it contained allegations as to an account stated between the parties, and prayed judgment for the balance. The court granted a motion for a reference, on condition that plaintiff should strike from the complaint all allegations as to an account stated, and proceed solely on the allegations as to the sale and delivery of the goods and the rendition of the services. From the granting of this order defendant appeals.

Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.

Franklin Bien, for appellant. Henry De Forest Weekes, (John A. Weekes, Jr., of counsel,) for respondents.

We are of the opinion tnat the court had no power in the same order to direct an amendment of the complaint and order a compulsory reference. The defendant had a right to answer the amended complaint. Under the complaint as originally framed the plaintiff could certainly have claimed the right to prove an account stated. By the amendment this cause of action was eliminated, and one upon a quantum meruit substituted. This new cause of action the defendant had a right to meet by a new pleading. If it be claimed that there was also a count in the complaint for goods sold and delivered, and that that remained, it is to be observed that in connection with that count the plaintiff claimed that the price of goods delivered had been agreed upon, and that this allegation was stricken out in the order of reference, and another substituted in its place, alleging what was the reasonable value therefor. An entirely new issue was thus tendered to the defendant, and his right of answer could not be taken away, and before issue joined no reference can be made. The order should be reversed, with $10 costs and disbursements. All concur.