
    Susan E. Perkins, Respondent, v. Amanda M. Storrs, Appellant, Impleaded with Thomas O. Palmer, Defendant.
    Third Department,
    June 27, 1906.
    Partition — amendment of complaint by referee — appeal—judgment affirmed because appellant’s case defective — amendment of answer to amended complaint only traverses allegations added.
    When in an action for partition the defendant consents that the referee pass upon a motion to conform the complaint to the proof, he cannot on appeal contend that the referee had no power to entertain the motion. Moreover, a referee has that power under sections 733 and 1018 of the Code of Civil Procedure.
    When such amendment merely conforms the pleading to the proof so as to show descent of title to the premises involved in an action for partition, the cause of action is not changed.
    When the defendant-appellant contends on appeal that the plaintiff in partition did not prove lief title as alleged in the complaint, but the printed case does not contain the answer and the appellant does not deny on argument or on his brief the respondent’s statement that the answer did not deny the allegations of the complaint showing the chain of title, the appellate court will affirm a judgment in the plaintiff’s favor.
    When a plaintiff is allowed to amend to conform the complaint to the proof, and the record shows that the answer was deemed to be amended so as to put the allegations of the amended complaint in issue, the latter amendment means only that the allegations added to the complaint are controverted and not those originally admitted.
    Although a defendant’s deed shows an interest in the éntire premises sought to be partitioned, it is immaterial if the plaintiff proves herself to he a tenant in common, as the defendant’s grantor could convey no greater title than he possessed.
    
      Appeal by the defendant, Amanda M. Storrs, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 21st day of October, 1905, and entered in the office of the clerk of the county of Essex upon the report of a referee.
    In the original complaint it was alleged that in 1893 one William Storrs, plaintiff’s brother, being the owner in fee of an undivided one-half of the real property therein described, died intestate and that said premises descended to his heirs, who were named, one of whom was the plaintiff. It was also alleged that the other undivided one-half of the property was owned by Orrin Storrs, a brother of William, who died in 1892 previous to the death of William, and that plaintiff was seized in fee by inheritance and entitled to the equal undivided one-tliird part of said real estate of said William Storrs, deceased, or one-sixth of the entire estate of William Storrs and Orrin Storrs.
    On the trial the proof showed and the referee has found that William Storrs and Orrin Storrs, brothers, were in their lifetime seized in fee of the premises in question and continued to own the same until their deaths; that Orrin died intestate in 1892, leaving him surviving three children, Charles L., William H. and Jennie; that William died intestate in 1893, leaving him surviving as his heirs at law, his brother, Elbridge Gr., his sister, the plaintiff Susan E. Perkins, and said Charles L., William H. and Jennie, children of said deceased brother Orrin; that said Charles L., William H. and Jennie thereafter conveyed to said Elbridge Gr. Storrs their interests in all the lands owned by William and Orrin at the time of their deaths, including the premises in question, and that said Elbridge G-. thereafter and in 1899 conveyed to the defendant Amanda M. Storrs all his interest in the property in question. The referee further found that the plaintiff, Susan E. Perkins, was at he time of the commencement of the action seized in fee simple absolute of an undivided one-sixth part of said premises and the defendant Amanda M. Storrs was seized of an undivided five-sixths part thereof. The referee reported that the plaintiff is entitled to the usual interlocutory judgment in partition and directed a sale thereof., From such.interlocutory judgment the defendant Amanda M. Storrs has appealed.
    
      
      Adelbert W. Boynton, for the appellant.
    
      Seth S. Allen, for the respondent.
   Chester, J.:

At the close of the plaintiff’s proof the defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had failed ' to prove her cause of action, whereupon plaintiff’s counsel moved to amend her complaint to conform to the proof by inserting allegations to show how the undivided half of the premises owned by said Orrin Storrs, the brother of William, had descended to the parties to the action, in order to make it clear that the purpose of the action was to procure a partition of the entire estate instead of an undivided one-half thereof. Counsel for the defendant Amanda M. Storrs consented that the referee might pass upon the proposed amendment with the same force and effect that the court might at Special Term, without prejudice, however, to the objections and motions already made. The referee granted the amendment and it was thereupon stated in the record that the answer is deemed to be amended to put the allegations of the amended complaint in issue. The appellant’s counsel now urges that the referee had.no right to allow the amendment as it changed the cause of action and could only have been granted at Special Term. If that was so, in view of the appellant’s consent that the referee might pass upon it, she has precluded herself from taking advantage of it here. But the amendment did not change the cause of action. The referee on tli'e trial had the same power as the court to amend the pleadings to conform to the facts proved. (Code Civ. Proc. §§ 723, 1018.) The action after the amendment was for partition of the same property between the same parties, having the same interests as alleged in the original complaint. The amendment simply supplied an omission therein to show how the parties received the interests it was claimed they liad, and it in no sense changed the cause of action.

The appellant further urges that as the deeds to her from-her husband, Elbridge G-. Storrs, put in evidence by the plaintiff were warranty deeds and conveyed on their face the entire estate in the premises, and as plaintiff proved no title in William Storrs and Orrin Storrs to the lands in question, the appellant was shown to be the owner of the entire estate and, therefore, that the plaintiff had not shown any title or possession in herself that would authorize her to maintain the suit. The action was evidently tried on the theory as alleged in the complaint, that William Storrs and Orrin Storrs were each the owners of an undivided one-half interest in the property- at- the time of their respective deaths, and that the appellant’s husband had settled with the plaintiff for any interest she had in the premises. The record on this appeal is a very imperfect one and contains only portions of the judgment roll. It does not contain the appellant’s answer. It is said in the respondent’s brief that the allegation in the complaint that William Storrs was the owner in fee of an undivided one-half of the real property described and died intestate as to the same was in no wise denied in the answer. The brief of respondent’s counsel also set out what he says are all the important allegations of the answer. These contain no denial of the interest of Orrin at the time of his death. These statements in respondent’s brief were in no wise denied by the appellant on the oral argument and no reply brief has been furnished controverting them. It was the duty of the appellant to furnish the court on this appeal with a copy of the judgment roll including the pleadings (General Rules of Practice, rule 41), and he having failed to do so, and not having denied the statements of respondent’s counsel as to the answer, we may assume, for the purpose of sustaining the judgment appealed from, that the respondent has correctly informed us what the answer contained. The parts of the complaint that are admitted by not being denied, together with the proofs, show a complete chain of title from William and Orrin Storrs to these parties, and their interests under the proofs have been correctly stated and found by the referee.

It is not to be assumed that the entry in the record that the answer is deemed to be amended to put the allegations of the amended complaint in issue means anything more than that the allegations added to the amended complaint are to be deemed controverted by the answer.

While the deeds from Elbrídge G. Storrs to his wife, the defendant Amanda W. Storrs, purport to convey the entire title to the premises, yet the proofs clearly show that he owned only a five-sixths interest therein as tenant in common, and, therefore, he could not convey any greater esfate or interest than he possessed. (Real Prop. Law [Laws of 1896, chap. 54?], § 210.)

The interlocutory judgment should he' affirmed, with costs.

Interlocutory judgment unanimously affirmed, with costs.  