
    Amelia L. Spies, Respondent, v. Edgar Lockwood, as Trustee, and Others, Appellants.
    
      Complaint to set-aside an instrument for fraud and want of consideration — amendment on the trial setting up payment, not allowed-—stipulation.
    
    Where a complaint alleges a cause of action for the cancellation of a bond and mortgage, upon tlie 'ground that they were obtained by fraud, 'and without consideration, a referee has no power to allow the complaint to be,amended so as to conform to the fa'ts proved by inserting therein an.allegation that since . the execution of the bond and mortgage, and before the commencement of the action, the debt which they had been given to secure had been fully paid, as - the amendment not only changes substantially the claim, of the plaintiff, but inserts a new cause of action.
    The fact that the testimony upon which the amendment was based was-admitted without objection does, not estop the defendants from objecting to the amend-. ' ment, where it appears that the testimony was competent upon an issue-raised by the pleadings, as to whether the- mortgage was executed without consideration.
    
      Semble, that if the parties had consented to litigate the question whether the mortgage had been paid, the referee might properly allow the amendment.
    What stipulation is not broad enough to permit the plaintiff to raise the question in such a case whether the mortgage had been paid, considered. ‘
    .McLATjamiN, J., dissented.
    : Appeal by the defendants, Edgar Lockwood, as trustee, and others, from a judgment of. the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Néw York on the 23d day of April, 1898, upon the report of a referee, and also' from an order made at the New York Special Term, and entered in said clerk’s office on the 20th day of April, 1898, granting the plaintiff an extra allowance of $200.
    
      George A. Strong, for the appellants.
    
      James Harold Warner, for the respondent.
   Rumsey, J.:

The second amended complaint in this action, upon which was joined the issue to he determined by the referee, alleged in substance that upon the 26th of October, 1893, the plaintiff signed two written instruments, one purporting to be a bond to Edgar Lock"wood, one of the defendants, as trustee, conditioned for the payment by her of $7,500, and the other a mortgage to secure the bond; that the mortgage was recorded in the office of the register of deeds and appeal’s to be a valid instrument, and creates a cloud on the title of certain premises in the city of New York owned by her. The complaint then contains allegations that each of said instruments was without any consideration ; that at the time of signing them the plaintiff did not know their contents, but believed that they were something else than what they in fact were; that she did not know the legal effect of them, and that her ignorance of the contents of the instruments and their legal effect was caused by false representations made to her with intent to deceive her, and that she believed the representations. The complaint further goes on to state that from the 21st of June, 1893, and until after the signing’.of the papers referred to, the plaintiff was sick and suffering from nervous prostration; that she was taking anaesthetics under a physician’s advice; that she never had any knowledge of legal or business matters, and that she was in such a nervous mental condition as to be unable to control her thoughts or to comprehend the consequences of her acts, and that her mind was'not in a com dition to consent to the terms of the contract. She alleges, also, that before the beginning of the action she demanded of the trustee to whom the instruments were given, to deliver them up, but that he refused to do so. The relief she demands is that the instruments be canceled, satisfied and discharged of record.

The answer puts in issue the validity of the bond and-mortgage, and insists, that each of them is a. valid instrument executed by the plaintiff in the full possession of her faculties, with full knowledge of the contents of each, for a valuable consideration, and that they are valid obligations in the hands of the persons to whom they were made and who then'held them. Upon the issue framed by this answer the cause was referred to a referee to' hear and determine. A very considerable amount, of testimony was taken before the referee, and at some time in the course of the trial a stipulation of facts was produced by the defendant’s"counsel and put in eviden.ce. That stipulation contained, in addition to a large number of facts bearing upon the question of the original consideration of the mortgage, the agreement that the second amended complaint, upon which issue had been joined, should be deemed amended so as to contain an allegation to the effect that when the plaintiff signed the alleged bond and mortgage the plaintiff and Edgar Loclc'w.ood (who, as trustee for other persons, was named as the party of the second part in the bond and mortgage) both believed that the firm of Way-dell & Co. were indebted to the persons for whose benefit the bond and.mortgage were given, but that in fact they were not “at the time the said alleged bond and mortgage was signed as aforesaid, nor at any other time,” indebted, in any sum whatever to those persons or any of them in any manner. With this stipulation in the case the parties proceeded to examine fully into the consideration of the bond and mortgage. It appeared that the plaintiffs husband had purchased from the persons for whose benefit this mortgage was given letters of credit to a large amount, and that .the firm of Waydell & Co. liad guaranteed the payment by the plaintiff’s husband of the amounts drawn on these letters of credit. After a large amount had been drawn upon them, the plaintiff’s husband died, leaving his affairs in a very unsettled condition, and Waydell & Co. were in a fair way to be financially ruined because of the ■ necessity of meeting, the claims of the persons who had issued the letters of credit for the money paid on account of them. The plaintiff was the owner of valuable real estate in the city of Sew York in her own right, and to-enable Waydell & Co. to meet the liability incurred by their guaranteeing the credit of her husband she executed the bond and mortgage in suit and another one. The allegation that the bond and mortgage were issued without consideration made it necessary of course to ascertain what, if anything, was due upon the letters of credit for which Waydell & Co. were guarantors. The stipulation in question stated many facts bearing upon the amount of indebtedness arising from this letter of credit, and that stipulation, with much other testimony, was given upon the trial, tending to show what, if any, amount was due upon those letters of credit at the time the mortgage was given by the plaintiff, and in the course of that testimony the plaintiff claimed that it appeared that for a large portion of these alleged debts neither, her husband nor the firm of Waydell & Co. were liable, and that in fact, if the amount for which they were not liable was deducted, as she claimed it ought to have been, from the amount apparently due by Waydell & Co., the remainder would be considerably less than the payments which had been actually made upon account of that debt, for which the mortgage was security. After the testimony upon this question of consideration had all been received, and the evidence had been closed, an application was made by the plaintiff to amend the complaint to conform to the facts proved by inserting substantially an allegation: That at the time when the plaintiff promised to pay $7,500 to the defendant Edgar Lockwood, the plaintiff and Edgar Lockwood intended that said promise be a promise to pay $7,500, part of any debt which John H. Waydell, Anderson Waydell and Frederic Waydell, a partnership, doing business under the firm name of Waydell & Co., owed the other defendants; and plaintiff further alleges that on November 11th, i893, any debt which said Waydell & Co. owed said other defendants was paid in full, and that the answer to the second amended complaint herein be deemed amended so as to deny each and every of the aforesaid allegations, or in such other form as defendants may be advised.” This was strenuously Opposed by defendants’ counsel, but after a full hearing the learned referee concluded that the amendment was one which he was authorized to make, and allowed it. To this ruling the defendants’ counsel excepted, and the question raised by this exception is the first one that confronts us upon the argument of this appeal.

It is claimed on'-the p'avt of the defendants that the amendment not only changes substantially the claim of the plaintiff, but constitutes in fact a new cause of .action, and, therefore, it was’ beyond the- power.of- the referee to permit it tó be inserted in the complaint at the -triah The power of the referee arises from section 723 of the Od'dé "of Civil -Procedure, which provides that the court may upon the trial, -in furtherance of justice, amend any pleading by inserting an allegation material to the case,, or where the amendment does not change substantially the claim or defense," by conforming-the pleading to the", facts proved. A referee to whom a case has-been referred to'hear and determine, has, in this matter, the same power as-a court bef ore which a trial is pending. Both court and referee derive their power purely from the provisions of this section, and while the power-is undoubtedly to be exercised with considerable freedom within its limits, yet its extent is quite strictly limited,, •as will" be noticed by" a reading "of the section, and the referee hastio power to allow any amendment which goes beyond the strict" limitation- of -the statute in that regard. These limitations are that the amendment to be alleged must not change substantially tlie claim or defense. When the power of "the referee to grant such an amend.ment is challenged, it is not necessary for the challenger to show that the améndment operates to set up a new cause of action, hut he makes "out his case to prevent it if he makes it appear that tlieamendment changes ' substantially the claim made by the plaintiff. It -is riot necessary to examine-into the reasons of this limitation of the power of the referee. It is sufficient to say that they are plainly established by the law, "and the only question in any ease is whether the amendment allowed is broader than the statute jsermits.

This action - was brought to procure -a cancellation of the bond and mortgage,- and that it should be discharged of record. The action as "brought proceeded upon tlie theory that the mortgage -was never a valid instrument, but that it was made without- consideration ; that the plaintiff" was in'ocured by fraud to sign- it, at a time when, . because-of-her mental condition, she was peculiarly susceptible to be influenced- by any one in whom she had confidence. The gravamen-of this action is that the mortgage had never any existence as a valid instrument. Whatever may have occurred after the mortgáge had been given was of no importance except , as it bore upon the question whether in fact themortgage, when signed by the plaintiff, became valid. The plaintiff was bound to stand or- fall by the proposition that, as a matter of law, the mortgage never took effect as a valid instrument. The amendment which was allowed by the referee was a serious change in the position of the plaintiff. So .far. from insisting that the mortgage was nevér a valid mortgage, this amendment practically conceded its validity and asserted a claim to have it satisfied of record for the reason that, being a valid instrument, its obligations had been satisfied so that- it no longer was operative. The relief which she would have been entitled to under that state of facts was not to have the instrument canceled and vacated, as invalid, but to have put upon the record a statement that the mortgage had been satisfied and discharged. Her right to have that relief arose under this amendment purely and only by what occurred after the mortgage was made. Anything that had been done by way of inducing her to make the mortgage was of no sort of importance as to her rights under the amendment, except, so far as it might bear upon the amount which she could be called upon to pay before she could have the mortgage satisfied. The two rights were entirely different, therefore, and arose out of entirely different conditions, and while, because they both sought substantially the same end they were not necessarily inconsistent in that regard,, yet the end which they sought was to be reached by entirely different roads, over different ground. The two claims proceeded upon inconsistent and contradictory theories. If .the plaintiff had tried the action upon the pleadings as they were framed at the time the .order of reference was made, she would have stood upon the theory that the mortgage was never a valid instrument. If she had been defeated in that action, nothing in the judgment would have operated as a bar to an action to compel the discharge of the mortgage for the reason that it had actually been paid, and she might,.as soon as the first judgment against her had been entered, bring another action for the discharge of the mortgage based upon the facts set up in the amendment. It is quite clear, for this reason, that not only did the amendment, change substantially the claim of the plaintiff, but that it inserted a new cause of action. Therefore, it was beyond the power of the referee to permit the amendment.

But it is said that the evidence was already in without objection, and for that reason it was proper that" the complaint should be amended to conform to the facts which each side was willing to put into the case. It is quite probable that if the parties had consented to litigate before the referee the question whether this mortgage had been paid, there would have been no objection, at the close of the case, to his amending the complaint to ■ introduce allegations which each party had permitted to be litigated upon the trial. Bu* that condition of affairs did not exist here. It is quite true that the parties went into the consideration of this mortgage, but it was solely upon the issue tendered by the pleadings,, that the mortgage was executed' originally without consideration. Every particle of testimony which was. admitted upon the question of the amount of the debts was competent and material upon -that question! The defendants could not have successfully interposed .an objection to any of that testimony. They' were not estopped, therefore, from insisting that the testimony which was material upon the issues framed.by the pleadings should not be used’as a reason for requiring them to litigate another question which was not presented in ■ the pleadings, and which clearly was not within their purview at' the time the' action was referred to the referee. -

It is said that the amendment contained in the stipulation, to the effect that Waydell & Co. were not, at the time of the giving of the bond and mortgage, or at any other time, indebted to the bankers, is broad enough to permit the plaintiff to raise the question that the mortgage was afterwards paid. With that contention we do not agree.. The amendment spoken of has in view only the consideration for which the mortgage was' given, a matter already presented by the pleadings and simply amplified by the amendment, and the question of indebtedness in that amendment clearly applied to. such indebtedness as would afford a sufficient consideration.for the mortgage, and nothing further. It does not warrant any claim that the mortgage, having a sufficient consideration, was paid after it had become a valid and' effectual security, because the whole theory of the complaint was that it never took effect as such. We are constrained, therefore, to differ with the learned referee as to the power to allow'the amendment, and as. a result we must reverse, this judgment and order a.new trial before another referee, with costs to the appellants-to abide the event of the action.

Van Brunt, P. J., Barrett and Ingraham, JJ., concurred ; McLaughlin, J., dissented.

McLaughlin, J.

(dissenting):

It is proposed to reverse this judgment solely upon the ground that the referee did not have the power to permit the complaint to be amended so as to conform it to the facts proved, by inserting therein an allegation that “At the time when the plaintiff promised to pay $7,500 to the defendant Edgar Lockwood, the plaintiff and Edgar Lockwood intended that said promise be a promise to pay $7,500, part of any debt which John II. Waydell, Anderson Way-dell and Frederic Waydell, a partnership doing business under the firm name of Waydell & Co., owed the other defendants, and plaintiff further alleges, that on November 11th, 1893, any debt which said Waydell & Co. owed said other defendants was paid in full, and that the answer to the second amended complaint- herein be deemed amended so as to deny each and every of the aforesaid allegations, or in such other form as defendants may be advised.”

The complaint before the amendment was allowed alleged: “ That at the time when the plaintiff herein signed the alleged bond and mortgage herein, the plaintiff herein and the said Edgar Lockwood both believed that the said Waydell & Co. were indebted in a sum of money to the said Munroe & Co., Kleinwort, Sons & Co., and the Canadian Bank of Commerce, as guarantors of letters of credit issued by the said Munroe & Co., Kleinwort, Sons & Co. and the Canadian Bank of Commerce, to Marcial & Co.; that the said Waydell &. Co. were not at the time the said alleged bond and mortgage was signed as aforesaid, nor at any other time, indebted in any sum whatever to the said Munroe & Co., Kleinwort, Sons & Co., and Canadian Bank of Commerce, or any or either of them, as guarantors or otherwise, of the said letters of credit or any or either of them, or in any other manner; that the said Waydell & Co. have never been indebted to either Munroe & Co., Kleinwort, Sons & Co., the Canadian Bank of Commerce, in any sum or amount of money whatever.”

The action was brought to procure the cancellation of a bond and mortgage. The judgment prayed for was that the bond and mortgage be canceled and that Lockwood, as trustee, be directed to execute and deliver to the: plaintiff .an instrument satisfying and discharging the- same of record. Upon the trial it appeared from evidence introduced by the defendants that,, when the instruments were given, Waydell & Oo. was indebted in the sum of $7,500 to the parties for whose benefit they were given, .but this evidence, according to the findings of the referee, also established that after the bond and mortgage'were given and before the commencement of this action this indebtedness had in fact been fully paid. If ■ the referee was right in his conclusion, then the plaintiff in equity was, entitled to have the instruments' satisfied of record. The evidence" establishing the payment having been introduced by the defendants themselves, I do not think they are in a position to complain because the referee permitted the complaint to be amended to conform it to the facts proved, especially in view of the fact that, after the amendment had been made; they were afforded an opportunity to introduce further evidence, if they so desired, which might "tend , to '. -explain, modify Or destroy the evidence theretofore given by them -on the subject of payment.

The Code óf Civil Procedure requires that the allegations of a pleading must he liberally construed with a view of substantial justice .betwéen the parties (§ 519), and if necessary in furtherance of justice the court (and it is conceded in the prevailing, opinion that the referee had the same power) may upon the trial, or at any other stage of- the action, amend a pleading by inserting therein an allegation material to the case,, or, where the amendment does not change substantially the claim or defense, by conforming the pleadings to the facts proved. (§ 723.)

The issue' both before and after the amendment was substantially the same. It was whether the bond and mortgage were valid and subsisting obligations. The plaintiff asserted that they were not, because when given Waydell & Co. were not then or at any time thereafter indebted to the. defendants. The defendants asserted that, they were, and they established the indebtedness when the bond and mortgage were, given, but in doing that they also established that it thereafter, and prior to the commencement 'of the • action, had been paid. When the indebtedness was -extinguished the purpose for which the bond and mortgage were given had been ■accomplished, and they then ceased to be binding obligations, and the plaintiff was legally entitled to have them given Up and canceled. The evidence to establish the payment, as I have said, was introduced by the defendants. They, therefore, could not have been misled or surprised by it.

.For these reasons I am unable to 'concur in the opinion of Mi’. ■Justice, Rumsey.

Judgment reversed, new trial ordered before another referee, •costs to appellants to abide event.  