ALLABEN a. WAKEMAN

ALLABEN a. WAKEMAN. Supreme Court, Sixth District; General Term, January, 1860. Amendment of Pleadings after Trial. Where leave is given, after trial before a referee, to amend the summons and complaint, by adding a new and distinct cause of action not connected with those set forth in the original complaint, the order should only be granted upon condition that the plaintiff stipulate to set aside the report, and vacate the order of reference, with costs to abide event; and the order should provide for service of the amended summons and complaint, and for time for defendant to answer. Appeal from an order authorizing the plaintiff to amend the summons and complaint. This action was tried before a referee. After the referee had made his report, entitling the plaintiff to a judgment,—1st, for the two causes of action set out in his complaint; and, 2d, for a cause of action for $66.82, not mentioned in the complaint,— the plaintiff obtained an order at the Broome Special Term, in April, 1859, in the following form: “ Ordered, that the plaintiff have leave to amend the summons and complaint in this cause, by inserting in the summons a further demand for judgment for $66.82, and by adding another count to the complaint, alleging that the defendant is further indebted to the plaintiff for money in the defendant’s bands belonging to the plaintiff, which the defendant received as referee in a suit of partition, in which Thompson Haynes was plaintiff, and Charles Myers and others were defendants. This motion is granted on payment of ten dollars costs by » plaintiff to defendant. And it is further ordered, that this order shall not in any way, shape, or manner, affect the rights of the defendant on appeal in this cause, nor'in any proceeding to set aside, reverse, or dismiss said judgment.” The plaintiff amended his summons and complaint in pursuance of this order, and the eleventh day after the order was granted he entered judgment, on the referee’s report, against the defendant, for all the causes of action mentioned in the amended complaint, amounting in the whole to $132.35, besides costs. The defendant appealed from the order, as well as the judgment, to the general term of the court. The judgment was reversed, and the order of referee vacated, costs to abide the event of the action. The following opinion was delivered on the appeal from the order authorizing the plaintiff to amend the summons and complaint. James R. Allaben, plaintiff, in person. William Wakeman, defendant, in person. [MAJORITY — By the Court.—Balcom, J.] By the Court.—Balcom, J. The order authorizing the plaintiff to amend the summons and complaint, as used, deprived the defendant of the right to answer a cause of action, for which judgment has been entered against him for $66.82. It affects a substantial right, and is, therefore, repealable. The amendments brought a new and distinct cause of action into the complaint, which was in no way connected with either cause of action set out in the original complaint. The order should not have been granted, except upon the condition that the plaintiff stipulated to set aside the report of the referee, and vacate the order of reference, with costs to abide the event of the action; and then it should have provided for the service of a copy of the amended summons and complaint on the defendant, and given him twenty days after such service to demur to or answer the amended complaint. If all the facts in the case had been presented to me on the motion for the order, as they appeared before the referee, I should not have granted the order. To say the least that the case justifies, the order was improvidently granted. It should be modified in conformity with the foregoing views. And as the plaintiff obtains a favor under it, and the defendant must be put to the trouble of answering the amended complaint, the plaintiff must pay $10 costs of the appeal from the order. I speak on the question of costs in the same manner in which I would if the order appealed from had been made at a special term, held by another judge. The plaintiff took the risk when he obtained the order, of a change of my opinion on the appeal, as well as of adverse views of my brethren. The order must be modified in conformity with the foregoing opinion, and the plaintiff must pay the defendant $10 costs of the appeal from the order. Decision accordingly. Present, Mason, Balcom, and Campbell, JJ.