
    Emma Hayes, Respondent, v. Leonard R. Kerr and Others, Appellants, Impleaded with Others.
    
      Ruling by a referee on a trial that an amendment to a complaint was neeessa/ry to justify the admission of evidence—appeal from an order allowing it—condition imposed — limiting the time to answer.
    
    Where a referee presiding at the trial of an action rules that certain evidence is not admissible under the complaint, and expresses his opinion that an amendment should be allowed, but that the application therefor should be made to the Special Term, the action of the Special Term in granting the plaintiff leave to amend will not be disturbed by the Appellate Division, although it is doubtful whether the amendment is necessary.
    Tan Brunt, P. J., dissented.
    'The plaintiff should, however, as a condition of being permitted to amend, be required to pay all the costs of the action before trial.
    'The court has no power to limit the defendants’ time to answer the amended complaint to ten days.
    
      Appeal by the defendants, Leonard R. Kerr and others, from so much of an order of the Supreme Court, made at the New York. Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1899, as allows the-plaintiff to amend his complaint by adding the following paragraph:.
    “ And the plaintiff further alleges that the aforesaid acts and representations of the defendant Leonard R. Kerr, and the obtaining of the aforesaid conveyance of No. 105 East 26th street, were-part of a scheme or plan made by him with intent to defraud the-said Mary Kerr, deceased, and her heirs and next of kin, to obtain by fraud, undue influence and without adequate consideration, for himself or his son or daughter, the property known as the Putnam House, or used in connection therewith, and its furnishings and belongings, as well as other property passing to the said Mary Kerr,, deceased, under the last will and testament of the said Lawrence R.. Kerr, deceased, or passing under the said last will and testament of the said Lawrence R. Kerr, deceased, to others than the said Mary Kerr, deceased, that might thereafter by the death of such persons-come into the possession of the said Mary Kerr, deceased, which scheme was devised by the defendant Leonard R. Kerr, at or soon after the death of the said Lawrence R. Kerr, deceased, and was prosecuted from time to time and finally consummated by the defendant Leonard R. Kerr after the death of the said Mary Kerr, deceased, by the acquisition by the defendant Leonard R. Kerr or his son or daughter hy fraud, undue influence and without adequate consideration, of the said property.”
    
      Sol Kohn, for the appellants.
    
      Peter B. Olney, for the respondent.
   Ingraham, J.:

There may be some doubt as to the necessity of this amendment,, but as the defendant has obtained a ruling from the referee, before whom the case was tried, that evidence offered by him was not admissible, because the allegations in the complaint are not sufficiently broad to allow such evidence, it woüld seem that a proper case was presented to justify an application to the court for leave to-amend the complaint. The object of the action is to set aside a. deed conveying certain real property to the defendant, which property, by his last will and testament, the grantor had devised to the plaintiff. The ground of the action is that this conveyance was procured by fraud and undue influence. If the allegations of the complaint were not sufficiently broad to allow evidence of the relations between the grantor and grantee to be proved, there would seem to be no reason why an amendment to the complaint should not be allowed so as to enable the plaintiff to present all the proof which would bear upon such relations. The necessity of this amendment first appeared upon the trial before a referee, when the objection to the plaintiff’s proof was taken by the defendant and sustained by the referee. It appears without contradiction that the referee expressed an opinion that the amendment should be allowed, but quite properly considered that, under the circumstances, the application should be made at the .Special Term instead of passed upon by himself. The plaintiff moved as soon as the necessity of such an amendment appeared, and Ave do not think, upon the facts as they are before us, that the plaintiff was guilty of laehes. The order appealed from, however, allows the defendant only ten days in which to answer the amended complaint. The defendant is entitled to twenty days in which to serve his answer, and the court had. no power to abridge the time. We also think that the plaintiff should have been required to pay all the costs of the action before trial.

The order appealed from should be modified by providing that the amendment is allowed upon condition that plaintiff pay the taxable costs, including ten dollars costs of motion, and that the defendant should have twenty days within which to serve an answer to the amended complaint, and as so modified affirmed, without costs in this court.

Patterson and McLaughlin, JJ., concurred.

Van Brunt, P. J. (dissenting):

As the court is apparently of the opinion that the amendment allowed was unnecessary, it seems to me that the order appealed from should be reversed. If applications of this kind are to meet with favor, every time that a court or referee rules upon a question of evidence involving the pleadings, whether such ruling be right or wrong, the party ruled against will make an application to the court to have his pleadings amended in order to avoid the objection taken and will he entitled to have his motion granted. It seems to me that the establishment of such a rule would result in the transfer of the trial of a case from the tribunal before which it was pending to the part of the Special Term devoted to the hearing of motions.

The order should be reversed.

Order modified as directed in opinion, and, as modified, affirmed, without costs.  