
    ZOLLER v. KELLOGG.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    Pleading—Amendment—Changing Legal into Equitable Action. A legal action for damages for defendant’s breach of a contract to construct certain streets leading to premises sold by him to plaintiff, and to make specified improvements in their neighborhood, cannot be changed, at the trial before a referee, by an amendment of the complaint, into an equitable action for the specific performance of the contract; such a change not being the insertion of an allegation material to the case presented by the original complaint within Code Civil Proc. § 733.
    Appeal from judgment on report of- referee.
    Action by Abram P. Zoller against Dayton S. Kellogg for breach of contract. At the trial before a referee plaintiff was permitted' to amend the complaint by demanding specific performance of the contract. From a judgment in plaintiff’s favor entered on the referee’s report, defendant appeals. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRIGK, JJ.
    George E. Phillips, (A. J. Nellis, of counsel,) for appellant.
    Wendell & Van Deusen, (John D. Wendell, of counsel,) for respondent.
   MAYHAM, P. J.

The original complaint in this action was for an alleged breach of contract set out in the complaint, and asked to recover damages for such breach. The original answer was a denial, and also an alleged performance of the contract. The issue thus framed was duly referred by consent and stipulation of the parties to a referee to hear and determine. On the appearance before the referee for the trial of the action the attorneys for the plaintiff moved to amend his complaint so as to change the action from one at law to recover damages to one in equity to compel a specific performance of the contract. This motion was opposed by the defendant’s attorney, who specifically objected that the proposed amendment changed the nature of the action, and that the referee had no power to allow an amendment of that character on the trial; also the further objection that the defendant was surprised by such amendment. The referee overruled the objection, to which railing the defendant duly excepted. The defendant then moved to amend his answer, which motion was granted. The trial proceeded upon the amended issue thus framed, and the plaintiff had a decree o/ specific performance, with costs, against the defendant. The controversy in this case arises out of a transaction between the parties, wherein the defendant contracted to sell and the plaintiff to purchase a vil loge lot, located on Prospect hill, in the village of Port Plain, in which contract of sale the defendant agreed as follows: “The said party of the first part, in consideration of the sale of said lot, agrees to work the street or dugway road along the side of said Prospect hill to the lots conveyed, so that the same may be used to pass up_ and down the same without any danger; to make said road or street now under process of construction fifty feet in width, of uniform grade, and nearly a uniform width; also to straighten the brow of the hill in front of premises already conveyed, as soon as the same can be done; to continue westward to a point opposite the Iron creek bridge, and complete the latter" part of said work by December, 1882.” The theory of the plaintiff in amending the complaint was doubtless to obtain a decree compelling the defendant to specifically perform the provisions of the contract above quoted, although the proposed amendment does not in all respects follow the language of the contract.

The first and perhaps the principal contention of the appellant on this appeal is that the referee had no power to grant this amendment at the trial. The powers of a referee in amending pleadings at the trial are the same as those possessed by the court at the trial. Code Civil Proc. § 1013. The power of the court to amend pleadings at the trial is given and prescribed by section 723 of the Code of Civil Procedure as follows: “The court may upon the trial * * * amend any process, pleading, or other proceedings * * * by inserting any allegation material to the case.” The demand for judgment is now an essential part of the complaint, and one of the statutory requirements of what the complaint must contain. Section 481 of the Code provides that “the complaint must contain * * * (3) a demand of the judgment to which the plaintiff supposes himself entitled.” It is true that by section 723 of the Code the referee was vested with all the powers of the court in that respect, and could, on the motion of the plaintiff, amend the complaint “by inserting any allegation material to the case.” Was this change of the form of action from one at law to an action in equity the insertion of an allegation material to the case? We think not. The case as presented by the original complaint was one for the recovery of money for an alleged'breach.of contract. The amendment was not one essential or material to that case. It was not necessary to enable the plaintiff to recover the money claimed, but gather to enable the plaintiff to recover on another kind of action in another case,—not the case to recover money, but a case for the performance of work. In this view of the case the amendment was not authorized by the section of the Code referred to. Even if the evidence had been taken in the case, and had disclosed real ground for equitable relief, the court would not have been authorized, under the succeeding clause of section 723, to so amend the pleading as to make it to conform to the proof, because by that clause of the section an amendment can only be made “when the amendment does not change substantially the claim or defense.” Here the claim would be entirely changed from a claim for a money demand to that of the performance of labor in a specific performance of the contract; so .that upon any fair construction of this section we are unable to find the power conferred upon the court to change an action at law for the recovery of money to one in equity for a specific performance. In Sleeman v. Hotchkiss, (Sup.) 13 N. Y. Supp. 98, the original complaint was for equitable relief to have a contract canceled and compel the transfer of certain stocks. On the trial the plaintiff ascertained that he could not recover on his complaint, and the trial was suspended and leave granted to him to move at special term to amend, which he did, asking to substitute a cause of action strictly legal, and the motion was denied for the reason that' this was an attempt to change the cause of action, which could not be done under, the Code, the court having no power to permit such change; and this ruling was upheld by the general term of this court sitting in -the first department. In Cumber v. Schoenfeld, (Com. Pl. N. Y.) 12 N. Y. Supp. 282, it was held that the court had not the power, on the trial, to change by amendment a. complaint from one for malicious prosecution to one of false imprisonment, and the court, in discussing that question, say: “That it is improper to permit, at the trial, a new-cause of action to be introduced into the complaint is apparent from the terms of the Code, as well as by the uniform 'current of adjudications,”—citing section 723, Code Civil Proc.; Price v. Brown, 98 N. Y. 388, 389; Reeder v. Sayer, 70 N. Y. 181; and several other cases. It is true that in the case of Wademan v. Railroad Co., 51 N. Y. 569, it was held that the trial court did not commit an error in an action for a specific performance in allowing pecuniary damages instead of decreeing such performance; but in that case damages were claimed in the complaint, and 'the court, in discussing the question, says that the court will sometimes give damages when asked, where specific performance cannot be decreed. So, too, in Lawrence v. Railroad Co., 36 Hun, 468, this court held that when a specific performance could not be decreed, the court could award damages, and when the vendee claims performance, and the vendor is unable to make complete performance, the vendee is allowed to have all he can get, with compensation for the deficiency. But these cases proceed upon the theory that partof the equitable relief claimed is pecuniary damages, and no amendment of the complaint was asked for or required. We are of opinion, therefore, that the learned referee, in granting this amendment, exceeded his powers, and that its allowance was error.

There is also great force in the. suggestion made by the appellant that the complaint is too general and indefinite in its terms to enable the court to require a specific performance of the agreement, and that that vice also inheres in the contract itself. Just what work is required to be performed, and in what manner and when it is to be performed, are not specified either in the contract or the complaint as amended; and this, in part, grows out of the fact that defendant appears to have been at work in excavating at the time of and since the commencement of this action. How much the judgment entered upon the amended complaint requires the defendant to do is quite uncertain, and the complaint and the decree would furnish no real and accurate guide for the defendant in performing the work which by the decree he is commanded to do. Great accuracy and precision in averment and proof are required in an action for specific performance, which does not seem to have been adopted in this case. I am therefore of the opinion that the decree should be reversed, the referee discharged, and anew trial granted, costs to abide the event. All concur.  