John F. Conway, Respondent, v. Farish-Stafford Company, Appellant

John F. Conway, Respondent, v. Farish-Stafford Company, Appellant. Second Department, June 20, 1913. Pleading — amendment changing cause of action — when referee cannot grant amendment. A referee has no power to amend a complaint seeking compensation due under a contract so as to change the action to one for damages for a breach of the contract or by adding a second cause of action for such damages. The plaintiff should apply to the Special Term for leave to amend. Appeal by the defendant, Farish-Stafford Company, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of April, 1913, denying a motion to vacate an order of reference. David Leventritt [Herman H. Oppenheimer with him on the brief], for the appellant. Martin L. Stover [Edtuin Blumenstiel with him on the brief] for the respondent. [MAJORITY — Per Curiam:] Per Curiam: In the form in which this action was originally brought it was for compensation under the contract, and was clearly referable. If the amendment to the complaint which the referee allowed had the effect of changing the cause of action to one for damages for breach of the contract, or of adding to the original cause of action for compensation a second cause of action for such damages, such amendment was not within the power of the referee to grant. (Perry v. Dickerson, 85 N. Y. 345.) If plaintiff is entitled thereto, as to which we express no opinion, application therefor must be made to the Special Term. "We may consider the complaint, therefore, as not effectively amended. If the amendment is made at the Special Term, either by entirely changing the form of the action or by adding an additional cause of action, the question whether, after such amendment, the entire action or either cause thereof is referable may be reviewed either by a renewal of the motion to vacate the order of reference or by an appeal from the order referring or refusing to refer said second cause of action, if the amendment takes that form. The order should be affirmed, with ten dollars costs and, disbursements. Jenks, P. J., Burr, Thomas, Oarr and Putnam, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.