
    Kate Clokey, as Administratrix, etc., of John T. Clokey, Respondent, v. The International Rubber Clothing & General Supply Co., Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    1.. Pleadings — Amendment — Allegation as to the residence of a corporation.
    Where the defendant denies -the allegation of a complaint that it is a domestic and alleges itself to be a foreign corporation, a referee may at the close -of the case, and although the defendant has given no evidence, properly permit the plaintiff to amend by alleging that .the defendant is a foreign corporation.
    8. Evidence — Proof á claim by a certificate in an action for an attachment.
    Where an action is brought by an assignee of a claim, the court may, upon the disputed question of the amount due, consider a certificate, furnished in. an action for an attachment; to the sheriff by the defendant, in which it denied any indebtedness to the attachment creditor and alleged that the exact amount, for which the plaintiff now claims, was due by it to a person named and who subsequently became the assignor of the plaintiff’s estate.
    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    
      William Stuart, for appellant.
    Robinson, Biddle & Ward, for respondent.
   Conlan, J.

This is an appeal from a judgment entered upon the report of a referee after the trial of the issues, in the action' before him.

The action is to recover the sum of $549.97, upon an' assigned claim for goods, wares and merchandise alleged by the plaintiff to have been sold to the defendant by one Thomas J. Little, and that .the claim was assigned to one Howard W. White and by White to the plaintiff’s intestate.

There was an allegation -in the complaint that the defendant was a domestic corporation, which the answer denies, and pleaded itself as a Hew Jersey corporation.

The assignment and the exact amount due were put in issue also.

At the close of the plaintiff’s case, the defendant’s counsel moved to dismiss the complaint on the ground that the plaintiff had failed to prove that the defendant is a domestic corporation,- and the referee sustained this view, with leave, however, to amend the complaint by alleging that the defendant was a foreign corporation, as the defendant had so pleaded in its answer. ■

The plaintiff availed herself of. this offer, and the required amendment was inserted. To this permission the defendant objected and excepted, on the ground that it was too late.

We think that the amendment was a reasonable one, and properly allowed, and because ¡of the allegation in the answer, its allowance was not prejudicial to the defendant. The defendant offered no evidence whatever and the referee, in his opinion, on this point, says: “The power of the court or referee to allow amendments would be very much curtailed if that power might be terminated the instant the plaintiff’s case was finished.by an announcement that the defendant also closed.” The defendant was surely not prejudiced by the amendment. Especially is this so, because of the affirmative allegation in the answer, and we think the referee was right' in his conclusion.

One other question requiring consideration is the one in dispute regarding the amount due to the original contractor, and in this particular, we .are again relieved from uncertainty by the very act of the defendant, who, in its certificate furnished to the sheriff, who had attempted to levy upon a credit in favor of the original creditor under an attachment issued against his property at the instance of a third party, expressly stated that it held and owed a certain sum of money, being' the amount of the assigned claim to the assignee of the original claim, and that it owed no money to the assignor. The precise language of this certificate is important, namely: “We do not owe said party, Thomas J. Little, any money which we ¡owe, being now owned by assignment, said Thomas J.' Little having assigned to Howard W. White $549.97.”

As we have already seen, White assigned this precise amount to the plaintiff’s intestate, in whose name the action was' originally brought.

This certificate is signed 35. G. 'Milhury, president, and was upon a letter-head of the International Rubber Clothing & General Supply Company, .'the defendant in the case at bar.

The opinion of the referee is, as we think, in full accord with the views herein expressed, and we have been unable to find anything in the record which calls for any reversal of the judgment.

Judgment must, therefore, be affirmed, with costs.

Fitzsimons, Oh. J., and .Schuchmah, • J., concur.

Judgment affirmed, with costs.  