
    WOOLSEY v. SHAW.
    (Supreme Court, Appellate Division, First Department.
    November 11, 1898.
    1. Pleading—Amendment.
    Defendant not having objected to the sufficiency of the reply, to put at issue allegations in a counterclaim, till after plaintiff had ceased his-case, plaintiff is not guilty of laches in not moving for leave to amendi till after defendant’s testimony has been completed.
    2. Same—Proceedings before Referee.
    Though plaintiff contended before the.referee that his reply was sufficient to put certain allegations in issue, and this was decided against him, he is not thereby estopped to apply to the court for leave to amend,, the referee having refused to entertain his application for leave to-amend, and referred him to- the court, and granted an adjournment to» allow him to malee such application to it.
    3. Same—New Matter.
    An executrix, who has revived an action commenced by testator,, should not be allowed to amend her reply so as to allege that services set. up as a counterclaim, and alleged to have been rendered to testator, were-performed at the request of others than testator; his reply having only-attempted to deny their value, and defendant being precluded from testifying to communications with testator.
    Appeal from special term, New York county.
    Action by Kate T. Woolsey, executrix of Edward J. Woolsey, deceased, against Willard P. Shaw. From an order denying a motion for leave to serve an amended reply to a counterclaim set up in; the answer, plaintiff appeals. Reversed.
    Argued before VAN BRUNT, P. J., and McLAUG-HLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    William Barnes, for appellant.
    C. F. Goddard, for respondent.
   INGRAHAM, J.

The action was brought by plaintiff’s testator* in his lifetime to recover an amount alleged to be due to him. The-defendant, in his answer, set up several counterclaims, one of which was to recover for services rendered by the defendant as an attorney at law to the plaintiff’s testator, the value of which services the -defendant alleged was $2,642.17. The plaintiff- replied to such counterclaim by alleging that the defendant performed certain professional services for the plaintiff during the time mentioned in the answer, but-denied that such services were reasonably worth over the sum of $400.. The case was referred to a referee; but, before the action was brought" on for trial, it appears that the plaintiff’s testator died. Subsequently, the action was revived by the present plaintiff, as executrix of' the original plaintiff. A new referee was appointed, and the action. ■was finally brought on for trial on January 7, 1898. At the close of the plaintiff’s case, on February 10, 1898, the defendant moved for judgment upon this counterclaim for professional services, upon the ground that the reply was not sufficient to put in issue the performance by the defendant of the services for the plaintiff’s testator, or the value of such services performed; and it seems that the referee sustained the defendant’s contention. Subsequently, evidence was offered by the defendant to sustain the other defense and counterclaims contained in his answer; and, upon the defendant’s resting, the question as to the sufficiency of the reply was again discussed before the referee. The referee adhered to his decision. Counsel for plaintiff then- asked leave to amend the reply; but the referee declined to entertain that motion, intimating that such application should be made to the court, and subsequently adjourned the hearing, to enable the plaintiff to make an application to the court. Pending that adjournment, a motion to amend the reply was made and denied. The learned judge, in denying this motion, places it upon the ground that, the plaintiff having challenged the judgment of the referee upon the sufficiency of the reply, the proper redress was by an appeal.

An exámination of the original reply would seem to indicate that the plaintiff intended to allege, in answer to this counterclaim for professional services, that such services, as rendered, were worth no more than $400. This reply is quite inartificial, and probably is subject .to the criticism of the defendant’s counsel that it is not sufficient to put at issue the allegations of the service rendered by the defendant to the plaintiff, and their value. The sufficiency of this reply, however, to put those facts in issue, never seems to have been challenged hy the defendant’s counsel until after the plaintiff had closed his case before the referee, on February 10, 1898. We do not think that the plaintiff can be said to have been guilty of laches in not making his motion for leave to amend until after the testimony of the defendant had been completed. Upon the completion of the testimony, the question was again raised and discussed before the referee, who adhered to his former decision. That was at the close of the defendant’s case, .and, strictly speaking, was the proper time at which to present the question to the referee. The application was not then denied by the referee upon the ground that such an amendment would be improper, but he declined to entertain the application, referring the party to the court, and granting an adjournment for the purpose of allowing the plaintiff to make such an application to the court. The fact that such .an application was made to the referee when he refused to entertain it certainly would not estop the plaintiff from applying to the court for leave to amend, as there was no exercise by the referee of his discretion upon the application. ¡Nor do we think that the plaintiff is estopped from making this application because plaintiff had claimed before the referee that the reply was sufficient. The referee having ■decided against her contention, she then either had to take the risk of a successful appeal, or apply to the court for leave to make an amendment which would present.the issue which it is quite clear from an examination of the original reply the pleader intended to present. The defendant can have no difficulty in proving the value.of the services rendered, and there seems to be no reason why the plaintiff should be compelled to accept his estimate of their value, without dispute, because of a mistake in the form of the denial used in the reply. Q In addition, however, the plaintiff seeks to amend the reply by inserting an allegation that the services alleged in the bill of particulars as constituting the services referred to in the counterclaim were performed and rendered at the request and direction of others than the plaintiff’s testator. We think' it would be unjust at this time to allow such a defense to be interposed. In the original reply there is no intimation of such an objection to the defendant’s claim; and now, since the death of the original party, the defendant would be precluded from testifying as to the.communications with the original plaintiff in relation to the services.

We think, therefore, that the order appealed from should be reversed, and the plaintiff allowed to serve the proposed reply upon condition that the fourth clause thereof be stricken out; the plaintiff, as' a condition for .such amendment, to pay to the defendant all costs after service of notice of trial, and $10, costs of opposing this motion; the plaintiff further to stipulate that all proceedings before the referee stand, the defendant’s case to be reopened, and the defendant to have leave to submit such further evidence as he shall desire. No costs of this appeal. All concur.  