Rocker v. Wildfoerster — 47 N.Y. St. Rep. 498

Majority

p. 498

John Christ Rocker et al., Resp’ts, v. Hulda Wildfoerster, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 22, 1892.)

Headnote

Pleading—Amendment on reference—Harmless error.

A judgment entered upon the report of a referee will not be reversed because the plaintiff was allowed to amend by adding an additional item of work, although the motion to amend was not decided until the final decision of the case, where the defendant was allowed to introduce her evidence as to this additional item and the case shows that plaintiff was entitled to it.

Appeal from judgment in favor of plaintiffs, entered upon report of a referee.

Hays & Greenbaum, for app’lt; B. J. Pink, for resp’ts.

—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 the 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 reversed and the motion granted only at the final decision of the case. 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 until the final decision is not to be com

p. 499

mended. 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.

Barnard, P. J., and Dykman, J., concur.