Ebenezer J. Bennett, Appellant, v. Jane A. Lake, Executrix, etc., Respondent

Ebenezer J. Bennett, Appellant, v. Jane A. Lake, Executrix, etc., Respondent. Defendant’s answer alleged that she had “ no information sufficient to form a belief” as to the truth of the allegations of the complaint. TJpon trial before a referee, leave was granted to amend by inserting the words “knowledge or” before “information,” so as to bring the answer within section 149 of the Code.—Meld, that the amendment was within the power and discretion of the referee. The General Term upon appeal from order of Special Term, has the same power to grant affirmative relief to the party opposing the motion, as is possessed by the Special Term. (Argued December 12, 1871; decided December 19, 1871.) Appeal from an order of the General Term of the Supreme Court in the third judicial district, affirming and enlarging an order of the Special Term. The complaint in this action was for money had and received by the defendant’s testator to the plaintiff’s use, to the amount of $260. The answer of the defendant alleged, “ that she has no information sufficient to form a belief as to whether” the said money was or was not received by her testator. On the 15th of May, 1871, the issue was referred by consent. The case was brought on for trial before the referee on the 12th day of July, 1871. Both parties having appeared, the plaintiff offered the pleadings in evidence as admitting his cause of action; in that the defendant answered the allegations of the complaint, by alleging, that she had “ no information sufficient to form a belief whether the allegations of the complaint were true or not,” and did not deny “ knoioTedge and information ” as required by section 149 of the Code. The referee thereon ruled that the said denial was insufficient in law. The defendant moved for leave to amend his answer in that particular. Objected to by plaintiff and objection overruled. Motion allowed without terms. Answer to be served and issue joined before adjourned day. Adjourned to the 20th of July, 1871. Before the adjourned day the plaintiff served a notice of motion for the Special Term of the Supreme Court, held in the city of-Albany on the 25th day of July, 1871, to set aside the ruling of the referee allowing the amendment and adjournment. This motion was denied with costs. From this order the plaintiff appealed to the General Term, where the order of the Special Term was affirmed in all things. And it was further ordered, “ that the defendant be and hereby is allowed and have leave, within fifteen days, to make and serve an amended answer to the plaintiff’s complaint herein, as she may be advised, is necessary and proper to a full determination of all the rights of the parties, and that the plaintiff have twenty days, from the service of such amended answer, to demur or reply thereto.” From which order the plaintiff appeals to this court. Bennett & Hamlin, for appellant. The only mode of amendment under the Code after issue and notice of trial, is by motion on notice before trial, and on terms. (Ford v. Ford, 53 Barb., 525 ; 13 Abb., 207; 6 How., 321; Union Bank v. Mott, 19 How., 233; 12 Barb., 215.) The only amendments allowed on trial are those within the provisions of sections 170 and 173. (Ford v. Ford, 53 Barb., 525 ; Union Bank v. Mott, 19 How., 267 ; Salter v. Genung, id., 233 ; Woodruff v. Hurren, 32 Barb., 541; Dunning v. Crummy, 44 Barb., 534.) Heither of these sections apply to this case. The amendment substantially changed the defense. (Lounsbury v. Purdy, 18 N. Y., 521; Edwards v. Vanderzee, 19 N. Y., 439 ; Davis v. Mayor of N. Y., 20 N. Y., 361.) The referee’s order deprived plaintiff of his absolute right to twenty-days to reply or demurr to the new answer. (2 R. S., 424, § 2.) The order of the General Term wholly changed the issue and was error. (Code, § 11, sub. 2.) Cowles dk Lake, for respondent. The rulings of the referee should be sustained. (Code, §§ 169, 170, 173, 272; Van Ness v. Bush, 14 Abb., 33 ; Harrington v. Slade, 22 Barb., 141; Beardsley v. Stover, 7 How., 294; 2 Tillinghast & Shearman’s Pr., 527, 528 ; Ford v. Ford, 53 Barb., 525; Bigelow v. Dunn, 53 Barb., 271.) The allowing of the amendment was clearly within the discretion of the referee. (Russell v. Conn., 20 N. Y., 81.) No appeal will be entertained from the order complained of. (Hodges v. Insurance Co., 4 Seld., 416, 418; Van v. Howe, 21 N. Y., 531, 539 ; N. Y. Ice Co. v. Insurance Co., 23 N. Y., 357.) [MAJORITY — Grover, J.] Grover, J. The appeal must be dismissed. The Code, section 272, confers upon referees the same power to allow amendments to any pleadings, etc., as is possessed by the court upon trial, upon the same terms and with the like effect. Section 173 confers power upon the court, in furtherance of justice and upon such terms as may be proper, to amend any pleading, process or proceeding, by adding or striking out the name of any party, or 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 confirming the pleading or proceedings to the facts proved. The amendment allowed by the referee was clearly within this section. It merely allowed a correction of an obvious mistake in the answer, by substituting the word knowledge for that of information, so as to bring it literally within the last clause of the first subdivision of section 149 of the Code. It surely required the amendment to make it effectual as a denial of the complaint. The Special Term very properly denied the motion to set this order of the referee aside, and this order of the Special Term was rightly affirmed by the General Term. It is well settled that affirmative relief may be given by the Special Term to a party opposing a motion. The General Term, upon appeal from the order of the Special Term, possesses the same power. (Johnson v. The Supervisors of Delaware Co., decided by this court, not yet reported.) The granting of affirmative relief was doubtless the reason why the appellant was not charged with costs. Allowing the amendment by the refereee and granting affirmative relief to the respondent, were both discretionary. This class of orders are not appealable to this court. (Code, section 11, sub. 4.) It follows that the appeal must be dismissed, with costs. All concur. Appeal dismissed.