
    SUPREME COURT.
    Oregon Steamship Company agt. George K. Otis.
    
      Power of ref eree to emend pleadings.
    
    A referee has the same power to allow amendments to any pleading as the court, upon such trial, upon the same terms and with like effect, and the matter being properly at his disposal, his action will not be reviewed by a judge at chambers
    
      At Chambers, July, 1880.
   In this suit the plaintiffs alleged that defendant, as their agent, made a contract with the United States for the transportation of the mails between San Francisco, California, and Portland, Oregon, from June, 1874, to June, 1878, for $100,000, for which service he was to have $2,500, but that he collected the whole amount and failed to account for $13,456.25, for ■ which judgment is asked. The case is now on trial before Horace Ruggles, as referee. The plaintiffs, after closing their case, asked leave to amend their complaint so as to allege that defendant made the contract for himself and then employed plaintiffs to perform the service, for which he agreed to pay them ninety-seven and one-half per cent, and that $13,456.25 was due and unpaid. The referee denied the application, holding that a referee did not possess the power under the Code to make an amendment of the character proposed, which he said was not simply conforming the pleadings to the proofs nor correction of a variance between pleading and proofs, but a substitution of a new and different cause of action for that now set forth in the complaint. While the complaint in its present form was for money had and received the amendment changed it to one for work, labor and services. A motion was then made before judge Donohue, in supreme court chambers, to allow the amendment, it being claimed that this would not be reviewing the referee’s decision as he had placed his refusal upon his want of power. Judge Donohue denied the motion, holding that “ the referee had the power to make an amendment. The matter was properly in his disposal and his action cannot be reviewed by me,” citing 15 New York, 122.  