Kimbel v. Mason — 68 N.Y. Sup. Ct. 337

Majority

p. 337

ANTON KIMBEL and Others, Respondents, v. JOHN MASON, Appellant.

Headnote

Practice — a reference and an amendment to the convplaini raising a new issue should not he directed in the same order.

In an action, whose object was to recover for goods sold and delivered, the complaiiit' alleged an account stated. Upon a motion for a reference, under section 1013 of the Code of Civil Procedure, the complaint was further amended .so as to claim upon a quantum meruit, and a compulsory reference was also ordered.

Held, that the amendment of the complaint tendered to the defendant a new issue, that he had a right to answer such new matter, and that an order of reference granted at the same time with the amendment, thus depriving him of that right, was improper.

Appeal by the defendant John Mason from an order, entered in the clerk’s office of the city and county of New York on the 2Sth day of July, 1891, appointing a referee and amending the complaint in the above-entitled action.

Franklin Bien, for the appellant.

John A. Weeks, for the respondents.

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 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 qiLanimm 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'tlie 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 thereof.

p. 338

All entirely new issue was tlius tendered tú the defendant, and liis right to 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., concurred.

Order reversed, with ten dollars costs and disbursements.