
    Second Department,
    July, 1915.
    John F. Conway, Respondent, v. The Farish-Stafford Company, Appellant.
    
      Reference —powers of referee.
    
    Reargument of appeal by the defendant from a j udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 33d day of October, 1913.
   Per Curiam:

In the form in which this action was brought it was for compensation under the contract, and on that ground we affirmed the order of reference against defendant’s insistence that it was entitled to a trial by jury. (153 App. Div. 906.) The referee, however, having in the course of the trial allowed the complaint to be amended so as to claim damages for breach of contract, proceeded over defendant’s objection and exception to report upon the whole case including that introduced by the amendment allowed by him. He thus awarded plaintiff $30,000 damages, but stated that to hold the complaint as one for services would necessitate a finding for defendant. Having held that the complaint originally alleged a cause of action for compensation, and as counsel for plaintiff then conceded, for compensation only, also that the referee was without power to allow an amendment changing the complaint (157 App. Div. 481), we cannot sustain the judgment wherein plaintiff’s recovery is wholly for a non-ref erable cause of action. The judgment is, therefore, reversed, and a new trial granted, costs to abide the event. Jenks, P. J., Thomas, Carr and Putnam, JJ., concurred; Rich, J., voted for affirmance. Judgment reversed on reargument, and new trial granted, costs to abide the event.  