
    VAN NESS a. BUSH.
    
      Supreme Oowrt, Fourth District; General Term,
    
    
      May, 1860.
    Pleading.—Amendment.—Evidence.
    The judge or referee before whom a cause is tried may allow the pleadings to he amended to any extent, in furtherance of justice, even to permit the setting up of an entirely new defence without costs.
    The appellate court can review such an exercise of discretion, only so far as to ascertain whether it was in furtherance of justice or not. tinder the common general interrogatory, requiring a witness to state any thing known to him material to the issue, or to the benefit of the party interrogating, the witness may state a fact material to the issue, though to the detriment of such party.
    Evidence of the declarations of a witness is inadmissible to contradict him, until he has been afforded an opportunity to explain them. This rule applies to witnesses examined by commission, as well as to others.
    Every witness, a party as well as any other, must be allowed to show that he was mistaken in previous admissions or statements which are used to discredit him. A party to an instrument for the payment of money is not estopped, by his mere refusal to pay it, based solely on the ground of inability, to a person then in possession thereof, from showing that it was not legally binding upon him.
    Appeal from a judgment entered on the report of a referee.
    This action was founded upon a promissory note of §200, made by defendant, and payable to Isaac Bush, or order, ninety days after date, and dated July 17, 1852. The note was indorsed by Isaac Bush, and by him transferred to plaintiff, about the 12th or 14th of December, 1857.
    The defendant’s original answer, under oath, Dec. 28, 1857, denied the allegation in the complaint, that defendant had not paid said note, &c., and alleged that Isaac Bush was the owner of the note until it arrived at maturity, and that at or about the time of its maturity the defendant paid the amount thereof to the said Isaac Bush.
    Upon this issue the cause went to the May circuit, 1858, and was there referred to George Tost, Esq., as sole referee. A commission was procured by defendant to take the depositions-of Isaac Bush, in Illinois, and the commission was returned to the referee in October, 1858. The cause came on for trial Eeb. 28,1859, at which time the defendant moved for leave to amend his answer so as to aver that the note was an accommodation-note, made by defendant for Isaac’s accommodation, in which defendant had no interest; that said note was afterwards indorsed and discounted for Isaac Bush, and paid and taken up by him at maturity, and long after then transferred by him without consideration to plaintiff.
    The referee allowed the proposed amendment, without costs to plaintiff, under plaintiff’s objection.
    There was evidence that Isaac Bush urged the note on plaintiff, and represented that it was good. About ¡November 15, 1857, plaintiff took the note in his possession, but paid no money on it then. Shortly after that plaintiff saw defendant and demanded the money on the note and showed it to him. Defendant made no objection to the note; said he had no money. About the 21st of ¡November, 1857, defendant, knowing that plaintiff had the note in his hands, told one Milligan that if he got the note it would be all right: and when Milligan asked defendant if there were any claims against the note, he said he had about $40 of claims against it, and desired Milligan to get the note and wait on him for it.
    Finally, between the 10th and 14th of December, 1857, plaintiff paid Isaac for the note. About the 14th of December, plaintiff saw defendant and asked him to pay the note or settle it up; defendant again replied he had no money; plaintiff then asked him if he had any offsets against the note; defendant replied, “ I guess I have;” plaintiff asked what they were, and •defendant made no reply. When plaintiff told defendant he should prosecute, defendant made no reply. Finally, the defendant makes, under his own oath, his answer to the complaint, wherein he claims, as a defence, the “ payment of the note to Isaac.”
    The referee found that the note was an accommodation-note, and ordered judgment for defendant. From that judgment this appeal was brought.
    
      H. C. Adams, for the appellant.
    I. The referee erred in allowing the defendant to substitute a new answer; because the issue of payment of the note, presented by the defendant’s original answer, was the only issue referred to him. He had no power to allow a new answer, presenting an entirely different issue from the one referred to him. The last clause of section 173 of the Code is a complete negative to the power of any court to change, upon the trial, the substance and nature of an issue to the extravagant extent exercised by the referee in this case. (Catlin a. Hansen, 1 Duer, 309; Fagan a. Davison, 2 Ib., 153.) The amendment, if allowed at all, should have been upon payment of costs to that time. (Chapman a. Webb, 6 How. Pr., 390; Lane a. Beam, 1 Abbotts' Pr., 65.)
    H. The referee erred in allowing the answer to the last interrogatory, which called for evidence tending to the benefit of plaintiff, when the answer was directly against the plaintiff.
    HI. The referee also erred in allowing the evidence of defendant, “ that he was mistaken in his first answer, when he stated that he had taken up the note and had paid the amount to Isaac Bush.” A party cannot be allowed to prove his ignorance or culpability as an excuse against a recovery.
    IV. It was shown by positive evidence, that before and after the note was transferred to plaintiff, the defendant recognized the note as valid against him. He is, therefore, estopped from any defence against the note: 1. By his silence when he saw it in the hands of a bona-fide holder who demanded payment, asked information, and threatened to prosecute him; 2. By his admissions, express and implied, and by his open and general conduct, which must be -considered as addressed to every one who may have had occasion to act upon them. (1 Greenl. Ev., §§197,207.)
    V. The finding of the referee that the note was an accommodation-note, &c., and his conclusion and order thereon, were against law and evidence.
    
      James Genter, for respondent.
   By the Court.—Rosekrans, J.

The defendant, in his origi nal answer, put in issue, first, the transfer of the note mentioned in the complaint by the payee to the plaintiff; and, secondly, averred that the payee was the owner of the note until its maturity ; and that while he was such owner, and before it was transferred to the plaintiff, the defendant paid it to the payee.

On the trial he applied to the referee to amend his answer, by setting up that the note was made by him for the accommodation. of the payee, and was taken up by the payee at maturity, and was subsequently delivered by the payee to the plaintiff, without consideration. The referee allowed this amendment, without costs.

I. The plaintiff insisted that the referee had not the power to allow the proposed amendment; that it changed the substance and nature of the defence, and was wholly inconsistent with the original answer. The objections were overruled, and the plaintiff excepted.

We think the objections were properly overruled. Section 173 of the Code provides that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading by correcting a mistake in any respect, or by inserting other allegations material to the case.

This language would seem to remove all restrictions upon the power of amendment of pleadings upon the trial, in cases in which it is made to appear to the court that the amendment would be in furtherance of justice. This was the construction given to this section by Harris, J., in the case of Beardsley a. Stover (7 How. Pr., 294). In Harrington a. Slade (22 Barb., 161), the general term in this district held substantially the same doctrine. Paige, J., says that, “ Under the old chancery practice, amendments of answers, and leave to put in supplemental answers, were granted with great caution; that the defendant was not allowed to put in a supplemental answer contradicting the statements in the first answer; but that amendments were now granted with more liberality, and that under the provisions of the Revised Statutes and the Code, it is the duty of the court to allow amendments in furtherance of justice, upon such terms as shall be just and proper.”

The cases of Catlin a. Hansen (1 Duer, 309), and Fagan a. Davison (2 Ib., 153), so far as they conflict with this construction of section 173 of the Code, are not, in our opinion, correct.

The Court of Appeals, in the case of the Cayuga County Bank a. Warden (6 S. Y, 19, 27), held that an amendment without costs, was an amendment “upon such terms as may be-proper within the meaning of the section referred to.”

The terms of an amendment are by this provision clearly within the discretion of the court, and the exercise of that discretion is not the subject of review upon exceptions or appeal.

Section 272 of the Code gives a referee the same power to allow amendments to any pleading as the court upon a trial, upon the same terms and with the like effect.

II. There is no force in the plaintiff’s objection to the answer of Isaac Bush to the last direct interrogatory. That interrogatory asked the witness, “ if he knew or could state any other matter or thing material to the subject of his examination, or which might tend to the benefit of the plaintiff.” The answer was responsive to the first branch of the question, and was material to the issue tendered by the amended answer, which alleged that the note was delivered by the payee to the plaintiff without consideration, and also to the issue tendered by the first answer, that plaintiff was not the real owner and holder of the note.

HI. The referee properly excluded the evidence offered of the declarations of Isaac Bush, that he had received a consideration for the note from the plaintiff. The testimony was offered for the purpose of contradicting the testimony of Isaac Bush, and to affect his credibility; and the objection to it was, “that the attention of the witness had not been called to the conversation,” and was sustained.

It is settled by the case of Brown a. Kimball (25 Wend., 259), that the declarations of witnesses whose testimony has been taken on commission, made subsequent to the execution of the commission, contradicting or invalidating their testimony, cannot be given in evidence; and that such evidence is always inadmissible, unless the witnesses have been examined upon the point, and an opportunity offered them for explanation or exculpation, and that the rule applies as well where the testimony is taken under a commission as otherwise. The same doctrine was held in Stacy a. Graham (14 N. Y, 492).

The referee also properly allowed the defendant to explain the inconsistency of his testimony with his first answer. The plaintiff had introduced the first answer in evidence to impeach the defendant’s testimony. Clearly, the defendant’s mouth could not be closed, and he thereby prevented from showing that it was put in through forgetfulness of the facts and by mistake, and not corruptly.

The other questions in the case were purely questions of fact for the referee, upon a conflict of evidence. His finding is conclusive.

IV. There was no sufficient evidence upon which the referee could hold, as matter of law, that the defendant was estopped from setting up the defence that the note was made for the accommodation of Ms brother, and was taken up by him at maturity, and afterwards transferred to the plaintiff. The only evidence upon which it could be claimed that the estoppel arose, was the answer of the defendant to the plaintiff’s demand of payment of the note made on the 10th or 15th of November, 1857, that he “ had no money.” But clearly this answer was not made with a view of influencing the plaintiff to purchase the note; on the contrary, the plaintiff testified that he then had the note in his possession, and showed it to the defendant, and told him that he (plaintiff) had a note against Mm.

It is one of the essential elements of an estoppel in pais, that the declaration out of which it is claimed to arise, should be made with a view to induce the party to whom it is made to act upon it.

The judgment should be affirmed.  