
    Samuel C. Harriott et al., Plaintiffs and Appellants, v. James N. Wells et al., Defendants and Respondents.
    1. Upon a complaint being amended in a material particular, the defendant’s right to answer the amended complaint, by interposing any defense which he may possess, is absolute and unrestricted.
    2. Thus, where, upon a trial of an action brought upon a contract, of which the plaintiffs, in their complaint, alleged performance on their part, they failed to prove full performance, but gave evidence of a waiver of such performance by the defendants, and asked leave to amend their complaint accordingly, which was allowed on condition that the defendants be allowed to amend their answer so as to meet the plaintiffs’ amendment, but the terms or nature of the amendment to be made by defendants was not prescribed.
    
      Held, on defendants’ motion after judgment, for leave to amend the answer by interposing the statute of limitations, that untess the plaintiffs elected to withdraw their motion to amend, the judgment should be vacated, and the defendants allowed to amend by interposing the statute of limitations or any other legal defense, without restriction.
    (Before Bosworth, Ch. J., and Moncrief, Robertson, White and Barbour, J. J.)
    Heard, June 7, 1862;
    decided, June 28, 1862.
    Tots was an appeal from an order of the Court at Special Term, made on the 20th of December, 1861, upon a motion on the part of the defendants to amend their answer.
    The action was brought by Samuel 0. Harriott and Bernard Bice, assignees of Solomon Kipp and Abraham Brown, against James 1ST. Wells and Don Alonzo Cushman ; and was tried before a Eeferee.
    The facts are fully stated in the opinion of the Court at General Term. The motion was granted conditionally at Special Term, the Judge delivering the following opinion:
    Hoffmah, J. The Eeferee, after the testimony was closed, and, it is said, during the summing up, was asked to allow the complaint to be amended so as to conform the pleadings to the proof, in regard to the time of starting the line and alleging waiver and consent by the defendants.
    The defendants’ counsel asked that the answer be considered as amended to meet the averment, all which the Eeferee granted. These are the statements in the ease.
    The Eeferee, in his special report, says that he made no other minute than this: “As to pleadings, plaintiffs’ counsel now moves to amend his complaint in reference to variance.”
    Ho amendments were drawn until the 19th of October, Í861, when the Eeferee settled the amendments, which were proposed by the plaintiffs’ attorney. He also restricted the defendants to a certain answer which was suggested by the plaintiffs’ counsel, as all that the defendants could put in.
    . In this I think there was an error. He had not authority to prescribe what answer the defendants should put in.
    The right to answer amendments under the chancery system was absolute. A rule of Chancellor Walworth fixed the time for such an answer. If an improper answer was interposed to the amendments, the usual course of getting rid of it could be pursued.
    If the variance was immaterial no amendment was necessary. If made under section 170 of the Code no answer was necessary or proper.
    But if under section 173, the amendment substantially changed the claim, amendments were necessary and could only be allowed at all by the Court, and then a right to answer must exist.
    The plaintiffs proceeded upon a covenant, averring strict performance of everything on the part of their assignors, to be done in order to give the right of action. It appears that there was a non-observance of a precedent condition. The plaintiffs prove, it maybe assumed, that this was in consequence of a change in that particular, assented to by the defendant. They now want to allege this in their complaint.
    The defendants urge that they were confident of defeating the plaintiffs on the ground, set up in their answers, of the failure to perform material stipulations. They did not feel bound to set up any other defense. But that if their assent to the non-performance is to be an element in the case, then it is unjust to deprive them of any other ground of defense they may possess.
    The Code does embarrass me in what would otherwise be a very clear case. If a further case is made by amendments, the right to answer is as unlimited as the original right. The answer is to be dealt with as an original answer. That the proposed answer is a plea of the statute of limitations cannot affect the question. (Gatlin v. Gunter, 1 Kern. R., 368.)
    If the plaintiffs’ counsel' deems himself safe under section 169, without a motion to amend or an actual amendment, I* think, upon the facts in the affidavits, he may have the privilege of withdrawing the amendments.. So the case will go up free from everything as to amendments.
    
      The order will be that the defendant be at liberty to file such answer as advised, unless the plaintiff withdraw his amendment, &e., as above mentioned; the cause, in case an answer' is filed, to proceed before the Referee, as to any new matters in issue; the judgment to be opened and set aside.
    From this decision, the plaintiffs took the present appeal to the Court at General Term.
    
      Albert Cardozo, for plaintiffs, appellants.
    
      A. W. Bradford, for defendants, respondents.
   By the Court—White, J.

In this case, which is an action commenced in 1855, to recover money ($2,100 and interest) upon an old contract, a sealed instrument, dated in 1837, the defendants, by their answer, denied that the plaintiffs’ assignors had performed the duties, the performance of which, by the terms of the contract, would have entitled them to the money claimed. The case was referred, and on the trial before the Referee, the plaintiffs failed to prove a full performance upon their part; but certain testimony was given which they contended established a waiver by the defendants of such full performance. When summing up before the Referee, the plaintiffs’ counsel moved to amend the complaint by inserting in it an allegation of waiver and consent by the defendants as to the particulars in which full performance had not been proved; and thus to conform the pleadings to the facts proved. The defendants’ counsel consented to the proposed amendment, provided the defendants were allowed to amend their answer so as to meet the plaintiffs’ amendment. The Referee stated that they should be allowed to do so, and leave to amend was accordingly granted; but nothing further was then said or done as to the form of the amendments or reducing them to writing. The plaintiffs’ counsel proceeded with his summing up, the Referee reported in favor of the plaintiffs, for $2,100 and interest; and a judgment was thereupon entered, from which an appeal was taken by the defendants to the General Term, Subsequently, when the parties appeared before the Referee, to settle the proposed amendments to the pleadings, the defendants desired to amend by interposing a plea of the statute of limitations to the new parol contract, which the amendment of the complaint presented. The plaintiffs objected to any other amendment of the answer than a simple denial of the allegation of a waiver.

The Referee was inclined to impose this limitation upon the defendants, but he made a special report of what took place before him, upon the plaintiffs’ original motion to amend, stating it substantially as it is given above; and he added, that his understanding at the time was, that the defendants’ amendment was to be only a denial of the allegation of waiver.

Upon this special report and all the pleadings and proceedings in the cause, the defendants moved at Special Term to amend, by pleading, as they had proposed to do, the statute of limitations.

On this motion, after hearing both parties, the Court at Special Term made an order directing, in substance, that if the plaintiffs, within a time specified, elect to withdraw their motion to amend, the cause shall then stand as if no motion to amend had ever been made; but if the plaintiffs do not withdraw their amendment, then the judgment shall be vacated and the defendants be allowed to amend by interposing, without restriction, any legal defense which they may possess, the statute of limitations or any other, and that the cause be sent back to the Referee for a new or further trial upon both the old and the new issues.

From this order the plaintiffs have appealed.

We think the order was correct. Upon a complaint being amended in a material particular, the defendants’ right to answer the amended complaint by interposing any lawful defense which he may possess, is absolute and unrestricted. The order must therefore be affirmed, with ten dollars costs to the defendants.  