Rocker v. Wildfoerster — 20 N.Y.S. 9

Majority

p. 9

Rocker et al. v. Wildfoerster.

(Supreme Court, General Term, Second Department.

July 22, 1892.)

Headnote

Appeal—Practice before Referee—Harmless Error.

Though the practice of a referee in reserving a decision on a motion to amend the complaint by adding other items of claim, until the final decision by the court, is objectionable, a judgment entered on his report for plaintiff will not be reversed where defendant contested the additional items, but plaintiff’s proof showed that he was clearly entitled to recover.

Appeal from judgment on report of referee.

Action by John C. Rocker and another against Huida Wildfoerster. From :a judgment for plaintiffs, defendant appeals. Affirmed.

Argued before Barnard, P. J., and Dykman and Cullen, JJ.

Hays & Greenbaum, (Samuel Greenbaum, of counsel,) for appellant. B. J. Pink, for respondents.

This is an appeal from a judgment entered upon the report •of a referee. The action is to recover a balance of contract price and for extra. work in building a house. The case presents merely a question of fact arising out of disputes as to the several items of work. Certainly there is no .such preponderance of evidence as to any item as to require or justify us in reversing the findings of the referee. It is claimed that the referee erred in permitting the plaintiffs to amend their complaint by adding an additional item of extra work. The motion to amend was made at the close of the plaintiffs’ case. Decision thereon was reserved, and the motion granted only at the final decision of the court. The referee doubtless should have disposed of the application before the defendant entered upon her defense. This practice of reserving decisions on such applications or questions of evidence till the final decision is not to be-commended. But no harm was done in this case. The defendant adduced her evidence as to this additional item, and the case showed that the plaintiffs were clearly entitled to it. The judgment appealed from should be affirmed, with costs. All concur.