
    UNION BANK a. MOTT.
    
      Supreme Court, First District;
    
      At Chambers, March, 1860.
    
      Again, Special Term, May, 1860.
    Amendment.—Power of Referee at the Trial.
    The power of a referee to allow amendments is restricted to amendments to cure immaterial variances.
    A referee cannot allow a cause of action to be inserted in the complaint by way of amendment.
    
      In an action brought by a corporation claiming to have been incorporated in 1852, under a general law, it appeared on the trial that a part of the indebtedness sued on accrued to a corporation of the same name as plaintiffs, before that date; that such corporation was originally formed by special charter, and that on the expiration of that charter, in 1862, the present corporation was organized under the general law, and the portion of the indebtedness in question was passed to it, with other assets, by assignment.
    
      Held, 1. That the variance could not be amended by a referee.
    2. That the court had power to amend it upon terms.
    Of the proper terms to be imposed on such amendment.
    I. March, 1860.—Motion to vacate an order made by a referee allowing an amendment of the complaint.
    This action was commenced in March, 1859 ; the complaint charged the defendants with an indebtedness of $141,586, for moneys fraudulently obtained from plaintiff between the first day of January, 1849, and the 16th day of March, 1858, by means of overdrafts and false entries in the books of account of the plaintiff, in collusion and with the aid of a book-keeper in the employ of the plaintiff during that time.
    A judgment was obtained by default against the defendant, Garrett S. Mott; the default was afterwards opened on terms, but the judgment ordered to stand as security. Both defendants, by separate answers, denied the complaint, and set up the statute of limitations. After answer, the defendants were arrested and held to bail in the sum of $142,000.
    The cause was by consent referred, and, on the hearing before the referee, the evidence given covered the whole period stated in the complaint, from which it appeared that the plaintiff was an institution organized under the general banking law, .in December, 1852, and commenced business January 1, 1853 ; that the institution known as the Union Bank, existing before the last date, was chartered in 1811 by the name of “ The President, Directors, and Company of the Union Bank of the city of New York,” and that the said charter expired, and said bank ceased to exist, on the last day of December, 1852 ; that all the claims against the defendants but $1000 occurred previous to 1852, and were held by the plaintiff as assignee.
    Upon the close of the proof, it was insisted that, under the complaint, the plaintiff was not entitled to recover for any claim ■accruing prior to 1853. The plaintiff claimed that the referee should conform the pleadings to the facts proved, but he declined.
    The plaintiff then moved before the referee for leave to amend the complaint, by inserting another count for the claim accruing prior to 1853, as assignee. This motion the referee granted. The defendants obtained an order for the plaintiffs to show cause why this order of the referee should not be vacated.
    
      S. A. Foote, for the plaintiffs.
    
      David Dudley Field, for the defendant Garrett S. Mott.
    
      C. Ga Nun, for the defendant Jacob H. Mott.
   Allen, J.

By section 272 of the Code of Procedure, referees have the same power to allow amendments to any pleadings as the court" upon such trial. Mistakes in pleading and amendments are regulated and provided for in chapter 6 of the 2d part of the Code; sections 169-173, inclusive, are more particularly applicable here. Section 169 declares that no variance between the allegation of a pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits, and governs referees as well as courts whenever questions of variance arise.

Section 170 authorizes the court, when the variance is not material, to direct the fact to be found according to the evidence, or to order an immediate amendment, without costs.

This is the only provision I find in the Code authorizing an amendment of the pleadings by the court upon trial, and this is to remedy an immaterial variance; and my opinion is, that the discretion and power of the referee in regard to amendments are restricted to cases within this provision, and that it was not the intent of the Legislature to confer upon referees power to do what the court may do upon or after judgment in furtherance of justice, under section 173.

The issues of fact, already joined, are sent to referees for trial, and, non constat, that the parties would have consented, or the court have ordered a reference of other and different issues; and hence, while it was proper and convenient that immaterial variances, which the referee was bound to disregard, should be obviated by immediate amendment, there was no necessity of giving to the referee all power and discretion over the pleadings in the action.

He should have every, facility for trying upon the merits the issues substantially joined by the parties.

By section 272, therefore, the power of the referee is defined and limited by reference to the power of the court in like cases upon the trial, and that power is conferred" by section 170.

This was not the case of a variance between the pleadings and proof, but, as was properly decided by the referee, the case of an entire omission of the principal cause of action ; the plaintiff’s claim consisting of two distinct causes or demands,—the one originating in dealings of the defendants with the plaintiff, and the other in similar dealings of the defendants with a third party to whose rights and claims the plaintiff has succeeded.

Under the complaint the plaintiff was not entitled to recover for the latter claim, as the referee correctly decided; and an amendment was necessary by adding a second count, and this was allowed by the referee.

This order was not warranted by the Code, and must be set aside, and the referee restricted to the trial of the issues referred.

If it be conceded that the referee may exercise the powers conferred upon the court by section 173, still the order for this amendment is not warranted by it, so far as applicable to this case; that section permits the court “ before or after judgment, in furtherance of justice, and on such terms as may be proper, to amend any pleading,” by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.

The allegations proposed to be inserted in the complaint were not material to the case,”—that is, the case made, or attempted to be made, by the original complaint,—but were necessary to make a new and distinct case. The amendment was not, therefore, within that clause of the section, and was forbidden under the other, as it confessedly within the ruling of the referee, and clearly, upon every principle, did change substantially the claim of the plaintiff.

It was not, a case for conforming the pleading to the facts proved.

Amendments upon trials should be cautiously made, and care should be taken that the interests of the other parties are not jeoparded by them, and I do not think an amendment of this character, without terms or conditions, was discreet, if the power to authorize it be conceded ; but as the exercise of a discretion vested in the referee, it would not be the subject of review except it -were grossly abused, and this could not be predicated of any act of the learned referee here, and I rest my decision solely on the ground of a want of power of the referee.

I presume this is a very proper case for the court to interfere, and allow the amendment asked, upon such terms and conditions as shall seem to be proper; and what those terms and conditions shall be, can only be determined after a case shall be made requiring or justifying an amendment, and the parties shall be heai’d.

The order must be set aside without costs, and the plaintiff must have leave to apply by motion to this court to amend the complaint, and the proceedings on the reference may be stayed to allow the motion to be heard.

II. May, 1860.—Motion for leave to amend the complaint.

In pursuance of the leave reserved in the qrder vacating the referee’s order allowing the amendment, the plaintiff subsequently moved at special term for leave to amend.

James, J.

—The only questions properly before me for consideration, are, whether the amendment asked for should be allowed, and if so, upon what terms and conditions. As I understand the Code, it was intended to give a party every facility of amendment consistent with a proper regard for the rights of the other party to the action. It conferred upon parties or the court the power of amendment in every stage of the action. Section 172 provides for amendments, of course, before trial; sections 169 and 170 provide for amendments by the court during the trial; which power is also conferred upon referees by section 272; and section 173 confers upon the court at any stage of the action, in furtherance of justice, and on such terms as may be proper, the power to allow an amendment of any pleading, process, or proceeding, by adding or striking out the name of any party, by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.

The amendment asked in this case is to insert other allegations material to the case. The case, as stated in the original complaint, is to recover for money fraudulently obtained from the plaintiff, between January, 1849, and March, 1853. It apireare that the plaintiff is a corporation, created in December, 1852, which succeeded to all the property, rights, &c., of another institution, of nearly the same name, the charter of which expired on the last day of December, 1852, the plaintiff con-, tinning the same business, in the same place, with the same clerks, &c., as the old bank. All the indebtedness accruing before 1853 was to the old bank instead of to the new, and belongs to the plaintiff by assignment; hence the amendment proposed is necessary to show plaintiff’s title to that part of the demand. It comes clearly within both the letter and spirit of section 173 of the Code. Of the power of the court to grant such amendment, I have no doubt.

Whether the claim, alleged to be due from the defendant to the above bank, and assigned, is capable of assignment, it is not now necessary to decide—the full facts upon that point were-not presented for my consideration. For the purposes of this motion I assume that it was, and, therefore, the claims held as assignee, and those due to plaintiff in its own right, could be joined in one action, and it would, therefore, be in the furtherance of justice to allow this amendment to be made, rather than turn the plaintiff over to another action.

The defendants insist that if the motion is granted, it should be only on condition that the judgment, obtained by default, and the order of reference, be vacated, the bail given on the arrest discharged, and the defendant permitted to demur to or answer anew the amended complaint, and that plaintiff pay all costs accruing since the service of the original complaint, with costs of this motion.

I do not understand that allowing this amendment enlarges the judgment obtained by default, or extends it as a security for any matter which could not be recovered under the complaint upon which this judgment was entered. Such judgment can only stand as security for such subsequent judgment as may be obtained for the consideration stated in the original complaint. To that extent, I can see no impropriety or injustice in allowing it to stand.

The bail in this case is very large, and the amount recoverable under the original complaint comparatively small. To continue the bail at its present amount, would be oppressive and unjust. Upon the fact, as presented on this motion, it is doubtful if an order of arrest would have been granted. I shall, therefore, direct the undertaking and the bail to be discharged, but without prejudice to any new application for an order of arrest, under the amended complaint.

I can see no reason for vacating the order of reference. Twenty-two days have already been spent in taking testimony, all of which is applicable to the case, if amended, and will have to be gone over again, if the order of reference be discharged. In fact, the whole trial, as far as it has proceeded, was upon the same questions as will arise under the amended complaint; and as no objection is made to the referee, the order should stand, and the testimony already taken made applicable to the pleadings as amended.

It was not made to appear why or wherein a demurrer or a new answer would be essential to protect the rights of the defendants, in case the motion to amend was granted. The original complaint, and the amendment proposed being presented, the court can see that no demurrer would lie, unless upon the ground that the complaint did not state facts sufficient to constitute a cause of action; and that question can be raised as well upon the trial as by demurrer. (Code, § 148.) And in the absence of cause, the answers already in, as they put the plaintiff to the proof of the whole case, and interpose the statutory bar, may be extended to the amended complaint without injustice to the defendant.

Upon such amendment being made, the parties will be prepared to proceed in the trial of the cause before the referee, at the place where they left off before this motion was made.

The motion to amend is granted, upon the foregoing terms and conditions, and on plaintiff’s paying to the attorneys of each party $10 costs of this motion.  