Edwin Collins, Appellant, v. St. Lawrence Club, Respondent

Edwin Collins, Appellant, v. St. Lawrence Club, Respondent. Fourth Department, January 8, 1908. Trial — amendment to set up counterclaim. A referee is without power to allow an amendment of the answer at trial to set up a counterclaim to the plaintiff’s cause of action. Appeal by the plaintiff, Edwin Collins, from a judgment of the Supreme Court in favor of -the defendant, entered in the office of the clerk of the county of Onondaga on the 8th day of December, 1902, upon the report of a referee. ' ' William L. Barnum, for the appellant. William F. Hodge, for the respondent. [MAJORITY — Hobson, J.:] Hobson, J.: During the progress of the -trial and after considerable -testimony bad been taken for plaintiff, the referee on- defendant’s, application.' permitted it to amend its answer by setting tip a counterclaim to the caiise of action which plaintiff had pleaded. Plaintiff duly objected to -the amendment, and excepted, to its -allowance- by the referee. The referee has found for ' defendant- and against the . plaintiff the- full, amount of -the counterclaim, and.the result of the action was materially changed thereby. The referee had no power to grant this amendment and plaintiff’s, exception thereto .presents reversible error. (Mitchell v. Bunn, 2 T. & C. 486.) All concurred. Judgment reversed, and -new trial 'ordered before another referee, with costs to appellant to abide event.