
    John F. Conway, Respondent, v. The Farish-Stafford Company, Appellant.
    Second Department,
    February 28, 1916.
    Practice — case on appeal to Court of Appeals—inclusion of opinion of Appellate Division — resettlement of order by Appellate Division — reference — amendment changing nature of cause of action.
    The inclusion of opinions of the Appellate Division in a case on appeal to the Court of Appeals is governed by the rules of the latter court and is to be enforced by motion in that court.
    Although an appeal' to the Court of Appeals is pending, the Appellate Division may resettle its order of reversal so as to state why the court did not pass upon questions of fact embraced in a referee’s finding, where the complaint was changed from one to recover a percentage of net profits to one for a breach with damages for a wrongful dismissal of employment.
    A referee has no power to allow an amendment to a complaint which in effect changes the action from one in which a reference, is proper to one which is not referable.
    Motion by the defendant, The Farish-Stafford Company, that the Appellate Division, Second Department, pass on the facts herein, or that it incorporate in its order a recital that it had not done so, also that plaintiff should be directed to include in the case on appeal herein, to the Court of Appeals, the opinion of the Appellate Division and the order made on this application, and further that plaintiff should be directed to make a case in the Court of Appeals to include all opinions rendered in this action by the courts at Special Term in relation to the question of law decided by the Appellate Division.
    
      David L. Leventritt, for the motion.
    
      Martin L. Stover, opposed.
   Per Curiam:

The inclusion of opinions in the case ” on appeal to the Court of Appeals is governed by its rules and is to be enforced by a motion in that court and not here.

In view, however, of the peculiar circumstances changing the complaint from one to recover fifty per cent of the net profits due December 31,1909, to a complaint for a breach with damages for wrongful dismissah we think our order of reversal should be resettled, so that the order itself shall state why we did not pass upon the questions of fact embraced in the referee’s findings. Notwithstanding the pending appeal to the Court of Appeals, we have this power. (Birnbaum v. May, 170 N. Y. 314.)

After the original issues had been referred and an appeal taken from the order of reference, it was mutually stipulated that our decision should be final, if the appeal should be dismissed or the order should be affirmed.

Upon argument of defendant’s appeal from the order of reference, the learned counsel for the plaintiff took the position that his action was to recover compensation upon the contract only, and thereby influenced the court to decide that the issues were referable. Having on that ground affirmed the order (153 App. Div. 906), this court thereafter regarded that as the law of the case both for the purposes of the reference and the trial.

In the course of the proceedings before the referee he subsequently allowed an amendment so that the complaint was no longer for a year’s net profits of the business but for damages for a breach of the contract.

Defendant’s motion to vacate the order of reference having been denied and then appealed here, this court, having been committed to the initial decision by the plaintiff’s primary insistence that the complaint was for compensation and not for breach of contract, abided by it, and considered that the referee could not eliminate that referable cause of action and substitute another. Accordingly we affirmed the order which refused to vacate the reference, stating that the complaint had not been changed, as such attempted amendment was not within the referee’s power (157 App. Div. 481). Nevertheless, the learned referee thought fit to ignore this opinion and, in disregard thereof, proceeded to report upon the issues introduced by such amendment. Naturally the defendant excepted thereto on the ground that the referee was without power or jurisdiction to make such findings as not within the scope of said order of reference and not within the pleadings and not provable under the cause of action alleged or referred.

This court reversed the judgment on such report (170 App. Div. 903) without passing on any of the matters of fact in findings made in opposition to our determination, which determination, until reversed, was binding upon the parties and upon the learned referee.

The order of reversal dated July 30, 1915, is, therefore, resettled so as to show why the findings of fact were not passed upon or reviewed on the appeal, which resettled order is now signed and entered. Otherwise, the defendant’s motion is denied, without costs.

Present—Jenks, P. J., Thomas, Stapleton and Putnam, JJ.

Order of reversal dated July 30, 1915, resettled so as to show why the findings of fact were not passed upon or reviewed on the appeal, and resettled order signed and entered; otherwise, defendant’s motion denied, without costs.  