Bullock v. Bemis — 2 N.Y. St. Rep. 189

Majority

p. 189

Mary H. Bullock, respondent, v. John M. Bemis et al., appellants.

(Supreme Court, General Term, Fifth Department,

Filed June 17, 1886.)

Headnote

1. Pleadings—Amendment of—Power of referee—Code of Civil Procedure, § 1018.

Either a referee before whom a case is proceeding or the court at special term has power to allow an amendment' of a pleading. The power to so allow is concurrent but not exclusive.

3. Same—Partnership—Amendment of complaint.

In an action to dissolve a copartnership on the ground of the fraud and misconduct of one of the partners, and for an accounting, the court may, upon the trial, allow an amendment to the complaint inserting an allegation, that a previous accounting and settlement was made and obtained by and through defendants’ false and fraudulent representations.

Appeal from an order of the Erie special term permitting the plaintiff to amend her complaint.

J. J. Inman, for respondent, Mary B. Bullock.

T. C. White, for appellant, John M. Bemis et al.

This action was brought to dissolve a copartnership on the ground of the fraud and misconduct of one of the partners, and for an accounting. Issue having been joined, it was referred to a referee and the trial commenced. During an adjournment a motion was made to the special term for leave to amend the complaint, which motion was granted upon terms.

It is now contended that the referee alone had the power to grant the amendment and that the court did not.

Section 1018 of the Code provides that upon the trial of an issue of fact the referee exercises the same power as the. court to allow amendments to the summons or to the pleadings. Under this section the referee doubtless had the same power to grant the amendment that the court had. Knapp v. Fowler, 26 Hun, 200 ; The Oregon Steamship Co. v. Otis, 27 id., 452; Smith v. Rathburn, 75 N. Y., 122 ; Reeder v. Sayre, 70 id., 180-190 ; Harris v. Tumbridge, 83 id., 92-97; Price v. Brown, 98 id., 388.

p. 190

The amendment did not change or bring in a new cause of action. It appeared that in November, 1880, the co-partners had an accounting and settlement, and entered into a further agreement, continuing the business until the first day of January, 1884. That the new agreement so entered into contained the following: “The books of the firm of John M. Bemis & Co. are hereby accepted by both parties-as correct and as truly showing the assets and the interests-of each of the parties in the business, and the assets of the' firm. ” The allegation which the plaintiff sought to incorporate into the amended complaint was to the effect that-she executed the new contract under a supposition that the-books of the firm exhibited to her at that time were correct;, that she has since ascertained that they were not, and that-the acceptance of them as correct and as truly showing the-assets and interest of each party in the business was procured through the false and fraudulent representations of the defendant Remis.

The only effect of the amendment is to permit the plaintiff to show that the agreement by which she accepted the books of the firm as correct up to the 26th day of November, 1880, was procured through false and fraudulent representation, so that the accounting between the co-partners-may go back of such alleged settlement. The nature and cause • of action is not changed. The amendment merely extends the period for which the accounting may be taken.

Section 723 of the Code provides that “ The court may, upon trial, or at any stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case, or where the amendment does not change substantially the claim or defense by conforming the pleading or other proceedings to the facts proved.”

It will be observed that this section is exceedingly broad, giving the court power to grant an amendment, not only upon the trial, but at any stage of the action, before or after judgment. It is true that section 1018 gives to the referee the same power upon the trial to allow an amendment as the court possesses, but this section does not purport to limit or qualify the power possessed by the court. The power given to the referee is concurrent, but not exclusive. Motion may be made before the referee, or if the party chooses, and the referee adjourns the case, the motion to amend may be made at special term. Wiley v. Brigham, 16 Hun, 106 ; S. C., appeal dismissed, 81 N. Y.,

p. 191

14 ; Mitchell v. Bunn, 2 T. & C., 86, 87; Hochstetter v. Isaacs, 14 Abb. N. S., 235.

Upon the merits the motion appears to have been properly granted. The plaintiff moved with reasonable despatch after learning of the alleged fraudulent entries in the co-partnership books.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concurred.