Kimbel v. Mason — 40 N.Y. St. Rep. 646

Majority

p. 646

Anton Kimbel et al., Resp’ts, v. John Mason, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Rbeebence—Amendment of pleading.

The court has no power in the same order to direct an amendment of the complaint so as to tender a new issue and order a compulsory reference. The right of answer cannot thus be taken away, and before issue joined no reference can be made.

Appeal from order of reference.

Franklin Bien, for app’lt; John A. Weeks, for resp’ts.

We are of the opinion that the court had no power in the same order to direct an amendment of the complaint and order a compulsory reference. The defendant bad 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

p. 647

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 ten dollars costs and disbursements. •>

Daniels and Ingraham, JJ., concur.