
    (22 Misc. Rep. 514.)
    McGILL v. HOLMES, BOOTH & HAYDEN.
    (City Court of New York, General Term.
    February 23, 1898.)
    Pleading—Amendment.
    The defendant’s amended answer admitted the plaintiff's claim, and attempted to allege an equitable set-off, and when this bad been disallowed by the referee to whom the issues had been sent for determination, and just before the trial had closed, defendant moved for leave to serve a further amended answer, denying the material allegations of the complaint, and setting up a large counterclaim, thus raising entirely new and different issues. Held!, that the motion was properly denied, and that defendant should be left to bring an independent action on his counterclaim.
    Appeal from trial term.
    Action by George W. McGill against Holmes, Booth & Hayden. From an order refusing leave to amend answer, defendant appeals.
    Affirmed.
    Argued before FITZSIMONS, C. J., and CONLAN, J.
    Ward, Hayden & Satterlee, for appellant.
    Atwater & Cruikshank, for respondent.
   FITZSIMONS, C. J.

The order appealed from must be affirmed. The issues framed by the complaint and amended answer admitted plaintiff’s claim. The answer further attempted to allege an equitable set-off sufficient in amount to defeat the plaintiff’s claim. Such set-off was properly disallowed by the referee, to whom the issues herein were sent for determination. Now, defendants seek to amend their amended answer by alleging a counterclaim for nearly $12,000, and, in addition, deny the material allegations in the plaintiff’s complaint. It must be, therefore, apparent that the proposed supplemental and amended answer actually proposed to make entirely new issues, and ones entirely different to the issues framed by the complaint and the amended answer. The plaintiff’s claim is denied in the last proposed answer. In the amended answer such claim was admitted, and, besides, in addition, a very large counterclaim is alleged,—something not attempted in the amended answer. These very radical amendments defendants sought to have allowed to them just ¿bout the closing of the trial before the referee. The referee properly denied their application; likewise the special term justice, when the matter was presented to him. If he had granted the motion, the trial would have rendered all the proceedings taken before the referee of no effect. The trial would have to be commenced all over again. Plaintiff would have had cast upon his shoulders the burden of proving his case, and the defendants allowed to prove their counterclaim, and disprove the plaintiff’s claim. Under these circumstances, we think that the order appealed from was properly made. The defendants should not at this late hour be permitted to introduce their said counterclaims, but should sue upon the same in the usual way.

The order appealed from is affirmed, with costs.

CONLAN, J., concurs.  