
    Horace H. Eldred, Resp’t, v. Mattie S. Eames, as Ex’rx, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. DECEDENTS ESTATES — ReFEBENCE OF DISPUTED CLAIM — ReFEBEE CAKNOT ALLOW AMENDMENT OF CLAIM.
    On the reference of a disputed claim against an estate the referee has no power to allow the claimant to withdraw items of his claim.
    2. Same.
    The statute conferring power of amendment in actions upon referees does not give the same powers to referees in these proceedings.
    
      Appeal from judgment of general term, fourth department, affirming order of special term, confirming the report of a referee .and the judgment entered thereon.
    
      L. J. Dorwin, for app’lt; Watson M. Rogers, for resp’t.
    
      
       Reversing 17 N. Y. State Rep., 911.
    
   Ruger, Ch. J.

This was a claim presented by the plaintiff to the defendant, as executrix of the estate of Frederick "W. Fames, deceased, and being disallowed and rejected by her was referred under the provisions of the statute, §§ 36, 37, 2299, 2300 (7th ed.), R. S.

Upon the hearing the plaintiff moved for leave to withdraw from the consideration of the referee several large items of his claim, on the credit as well as the debit side of his account, which motion was granted by the referee under objection and exception by the defendant. It is now contended by the defendant that this was error, and we are of the opinion that her claim is well founded.

The reference in such cases is a special proceeding, Roe v. Boyle, 81 N. Y., 305, founded solely upon the statute, and the referee possesses only those powers which are expressly conferred thereby or are fairly inferable from its provisions. It is provided by § 37 of the statute that upon such reference “ the same proceedings shall be had in all respects, the referee shall have the same powers, be entitled to the same compensation and subject to the same control as if the reference had been made in an action in which such court might by law direct a reference.”

It is urged by the respondent that inasmuch as referees have power to authorize amendments to pleadings in an action, that the section in question gives referees in this proceeding the right to allow alterations and changes to be made in the subject referred. The same course of reasoning would seem to make referees in these proceedings equal in all respects to referees in actions; but it has been held in many cases that they do not possess the same powers. „ Thus they do not have power over the subject of costs. Their reports are required to be 'confirmed by the court before going into judgment, Smith v. Velie, 60 N. Y.,106, and they cannot render an affirmative judgment for the estate. Mowry v. Peet, 88 N. Y., 453. Neither can they require a bill of particulars. Townsend v. New York Life Ins. Co., 4 Civil Pro. Rep., 398. And it would seem to follow therefrom that they could not change the items of an account presented and referred.

The exercise of such a power by the referee would enable a claimant to obtain a reference of his claims against an estate without the consent of the defendant, or the approval of the surrogate, which is made by the statute the condition of such a proceeding. It is the claim which is rejected by the executor that may be referred, and none other.

If the power of amendment is allowed, the whole subject of the conti’oversy may be changed during the trial, to the manifest detriment of the defendant, and in violation of statutory authority to order a reference. The trial might thus be had upon claims that were not presented to or rejected by the executor and whose reference was never approved by the surrogate. These conditions are made by the statute essential to the power to refer and cannot be dispensed with or subverted.

The distinctions between statutory references and those made in actions which are inherent in the nature of the proceeding, are not obliterated by the general language of the statute giving referees therein the same powers possessed by referees in actionsReither does the language of the statute conferring power of amendment in actions upon referees, purport to give the same-power to referees in these proceedings. It says that the pleadings in an action may be amended by the referee.

At the time of the adoption of §§ 36 and 37 of the Revised Statutes, referees -in actions had no power to authorize amendments to pleadings in actions. That power was first conferred by an amendment to § 272 of the Code in 1857. Section 11, chap. 723, Laws of 1857. Referees were then empowered to permit parties to amend the pleadings in an action, and were also given -other powers not before possessed by them. But there are no pleadings in these special proceedings. The statement of the account on one side, and the rejection thereof by the executor on the other, is all that constitutes anything in the nature of pleadings between the parties.

Under this condition, the plaintiff may, on the trial, give any pertinent proof to sustain his charges, and. the defendant may introduce any evidence which goes to defeat the claim. While the-statements and proceedings stand in lieu of pleadings, they still are not pleadings, and are not governed in all respects by the-same rules which apply to the construction and office of pleadings-in an action.

The question involved in this discussion arose in this court in Townsend v. N. Y. Life Ins. Co., 4 Civ. Pro. Rep., 398, where a referee-allowed the plaintiff to recover for items of an account not covered, by the claim presented to the executor. We there held that the referee had no power under the statute “ to vary or enlarge the matter referred.” We think that authority is controlling here., and renders a reversal of the judgment of the general and special terms necessary.

Other questions are presented on the appellant’s points for a. reversal of the judgment, but as they involve questions of fact, which must be passed on upon the re-trial of the case, it would be obviously improper to discuss them here.

The judgment of the special and general terms should be reversed and a new trial had before another referee, with costs to-abide the event

All concur.  