
    Julia A. Shaw, Resp’t, v. Agnes C. Bryant et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 29, 1892.)
    
    1. Pleading—Amendment.
    In an action to compel the trustee of certain infants to set apart and pay a portion of the income to plaintiff on a hill for hoard and necessaries furnisked to said infants, the court or referee has no power on the trial to permit an amendment of the complaint by inserting allegations of a conversion of moneys by their father as their supposed guardian, and a claim for a personal judgment against him, as this introduces a new cause of action.
    3. tHFAiTTS—Necessaries—Items must be proved.
    Where board and necessaries were furnished to a father and two infants and moneys advanced 'to each, the infants’ estate is only liable for the amounts advanced to them and debts incurred for necessaries, and positive proof that'each of the items were such should he required before it should be allowed against them.
    Appeal from j udgment entered on report of referee.
    
      George Norris, for app’lts; J. A. Shoudy, for resp’t.
   Patterson, J.

—The judgment entered upon the report of the referee in this action must be reversed. There are two fatal errors pointed out by the appellants. The first consists in the allowance by the referee of an amendment which radically changed the issues raised by the pleadings and allowed a new cause of action to be set up in the amended complaint.

As the original complaint was framed the action was for an injunction to restrain the Farmers’ Loan & Trust Company from paying over to the other' defendants certain moneys therein referred to; and it was also asked that the court direct the said company to pay out of trust funds in its hands belonging to the infant children of C. O’B. Bryant the amount of the claim the plaintiff asserted against them for board and lodging furnished and moneys 'advanced for the necessary support, maintenance, education and medical attendance of such infant defendants for a period intermediate the 17th June, 1882, and 2d April, 1885, and to require the said trust company to set apart and pay over to the plaintiff such portion of the annual income of the fund or of the securities in which it was invested as to the court might seem proper. Upon the answers interposed to this complaint the issues were referred. After much time spent in the trial of the case before the referee an application was made by the counsel for plaintiff to amend the complaint, and the referee ordered that it be amended by allowing allegations to be inserted therein which charged upon the defendant 0. O’B. Bryant a conversion of moneys paid by the trust to him as the supposed general guardian of his infant children to be applied to their maintenance and support, but which it was alleged he appropriated to himself;. and also allegations which would devolve upon the defendant C. O’B. Bryant a personal liability for the whole or some portion of the indebtedness the plaintiff claimed to be due her; and the amended complaint asks judgment not only that the plaintiff may have a lien upon the fund or the proceeds thereof, but also against-the defendants and each of them, except the Farmers’. Loan &. Trust Company, for $15,000 and interest, and in case the court should determine that the infant defendants were not liable to pay the whole of the amount claimed, that the plaintiff have judgment against them for the amount which should be paid by them, and against the defendant C. O’Brien Bryant for the remainder of the said $15,000.

The difference between the two complaints is most marked, and by the amended complaint a new cause of action was introduced, namely, one to enforce against the father personally the claim, or some part of it, which by the original complaint was sought to be charged only upon the funds or securities in the hands of the Farmers’ Loan & Trust Company. By this amendment the defendant C. O’B. Bryant was called upon to litigate a matter which was not in any way connected with the cause of action as set forth in the original complaint. It was entirely beyond the province of the referee to permit such an amendment That a court or referee has no power to permit on the trial an amendment to a complaint or answer which changes the cause of action or defense, or introduces a new cause of action or defense, follows from the terms of § 723 of the Code of Civil Procedure, and this view has been taken in Reeder v. Sayre, 70 N. Y., 181; Gas Light Co. v. R. R. Co., 51 Hun, 119; 24 St. Rep., 154, Price v. Brown, 98 N. Y., 388; Freeman v. Grant, 30 St. Rep., 143; Chapin v. Dobson, 78 N. Y., 74. That the amendment allowed by the referee introduces a new cause of action is beyond controversy; the original complaint being only for equitable relief and the amended complaint claiming a personal judgment against one of the defendants by reason of acts set forth in the amended complaint which would render him liable in a common law action. Such defendant is not debarred from reviewing the decision of the referee by appeal. He could not have moved against the order of the referee; as the proper way of reviewing the decision is by exception and an appeal from the judgment. Quimby v. Claflin, 77 N. Y., 270. Flor has he waived his right by answering. He did so on compulsion and under protest.

The second and quite as serious error appearing upon this record is the conclusion of the referee that the amount of the plaintiff’s demand should be divided upon some supposed equitable principle into three parts, and one of the three parts charged against each of the defendants, namely, the two infant children and C. O’B. Bryant. It appears in the proofs that the father and his two infant children boarded with the plaintiff at her hotel during the whole period between the two dates above mentioned, and that during that time bills were incurred not only for the board, lodging, education, medical attendance, and maintenance of the infant children, and for moneys advanced to them or for them to pay dressmakers’ and other bills, but that during a great part of the time the father also resided there, and moneys were advanced to him, and expenses were incurred on his account, and he became a debtor for large sums which could not be charged against the infants.

The referee- has proceeded in making this arbitrary division upon the asserted impossibility of separating the items. There should be no such insurmountable difficulty in ascertaining what was chargeable exclusively against the infants. Their estate is not to be burdened with charges except such as are actually and positively proven to be properly so chargeable. All that could be recovered against them or be made payable out of their property would be such amounts as were advanced or such' debts as were incurred for necessaries. And when the plaintiff undertook, upon the representations of their father, to supply them with such necessaries, and upon the undertaking that she would be paid out of the infant’s property, she was bound to know that the extent of the liability of the infants, or to which their property might be held, would be only for such things as would come within the description of necessaries for such infants in view of their needs -as affected by their station in life. It was the duty of the referee to require positive proof that each of the items sought to be enforced against either of these infant children came within the requirement stated. The certificate of their father that the final balance of $15,000 was correct, and the supposed statement of an account binding upon the infants by reason of that certificate, does not avail the plaintiff in any way, as the referee rightly held. Proof of each item was required. Manifestly the account includes charges against the father. He had no power to give such a certificate, and it does not estop the children or their guardians ad litem. Mr. Bryant was not a general guardian having the standing to make such a certificate; he was not authorized to receive the money from the trust company as such guardian. He had been appointed in New Jersey by an order of the court, but had never qualified, and, as was held in Foley v. Mutual Life Ins. Co., 45 St. Rep., 918, he could not do anything, either in the way of the receipt of moneys or by acts, to affect the estate or property of the infants in the alleged capacity of general guardian. It would have required perhaps some little trouble and industry on the part of the referee to pick out from the long account rendered the various items proven to be properly charged against the infants ; but that is no reason why the whole account should be massed and they held liable for two thirds of it.

We have been compelled in the examination of this case to wade through a record which consists of almost five hundred pages of what is simply a transcript of stenographer’s minutes, and nearly two hundred pages more of exhibits, and are constrained to say that we have never had the misfortune of seeing a record more carelessly compiled, or thrown together in more utter defiance of the rules of the court relating to the preparation of appeal papers. There are no less than eighty pages of this record consisting of colloquies between counsel and the referee, of arguments and affidavits made on motions to postpone hearings, of oral arguments of counsel, or incidental questions arising during the progress of the hearings before the referee, and of -matters utterly irrelevant to the merits of the cause. Everything in the way of testimony is recorded by question and answer, and not in the narrative form required by the rule of the court. We would be justified in refusing to consider the case at all on this record, and in sending it back for re-settlement, as was done in Mead v. Shea, 26 Hun, 393, and Smith v. N. Y. Cen. & Hudson R. R. R. Co., 30 id., 144, and would do so, but for the fact that the interests of the parties have been greatly compromised already by the delays had in the cause. The attention of the profession has been called time and time again to the condemnation, by the courts, of records on appeal prepared as this is, and there is no excuse for the vidlation of the rule in this particular action.

The judgment appealed from is reversed, with costs to appellants to abide the event; but if the defendants ultimately succeed, the bill for printing the case and exhibits on this appeal shall not be taxed as disbursements. A new referee must be appointed to hear and determine the cause.

Van Brunt, P. J., and O’Brien, J., concur.  