#### Amos Woodruff, plaintiff and respondent, *vs.*Patrick Dickie, defendant and appellant.

1. Referees are no longer in all respects mere officers of, or entirely under the control of the court. They become, by appointment, an independent tribunal, possessiúg such powers as are given by statute; and their decisions are reviewable only on appeal from their judgments. *JPer*Mohebl, J.

2. Referees now possess all the powers of the *court*in regard to amendments of pleadings; and their allowance or disallowance of an amendment can only be reviewed, if at all, in the manner other decisions of the same kind made by the court are reviewed, viz. on appeal. Barbouk, J, dissented.

3. The power of the *court to*allow amendments to pleadings has not been enlarged by the Code of Proceedure.

*6204. Neither at common law, nor under any statute previous to the Code, did the courts ever claim the power to allow an amendment to an existing pleading, by the insertion of a new and different cause of action or defense.

6. Section 173 of the Code of Proceedure, which allows an amendment of pleadings *“*by inserting other allegations material *to the ease,"*does not extend the power of the court over amendments setting forth a new cause of action or defense.

6. As regards the allowance of amendments of pleadings, a judge presiding at the trial of a cause even with a jury, possesses all the powers of the court on motion at special term, and can allow them in the same manner, and with the ■ like effect, as the court sitting in any other organized form for the administration of justice.

(Before Babbour, Monell and Garvin, JJ.)

Heard January 13, 1866;

decided July 14, 1866.

Appeal from an order denying a motion made at special term, for leave to amend the answer.

This action was brought to recover the last of several installments claimed to be due upon a contract for building a store, and also for extra work done thereon. The complaint set out the contract, which provided, among other things, that alterations or additions might be made, which were to be paid for; that the'building should be finished by the 1st of November, and in default a deduction of $60 a day might be made out of the last installment; that the work should be done according to the plans and specifications of the architect named, in a good, workmanlike and substantial manner, and of good, proper, and sufficient materials; and that the last installment of the contract price should be paid on completion of the building. The answer admitted the contract, and that alterations were made, but paid for as done. Denied performance of the contract on the part of the plaintiff, and alleged that he was not entitled to recover the last installment.

The action was referred to a referee, to hear and determine all the issues. While the trial was pending before the referee, the defendant moved the referee for leave to amend his answer. The proposed amendments were allegations that the building was not erected in accordance with the contract and specifications; nor in a good,' substantial *621and workmanlike manner. That • the plaintiff used in the construction thereof, materials of an inferior quality, and in less quantities than required by the contract. That the plaintiff failed to finish the building by the 1st of November, whereby the defendant was entitled to deduct from the last installment the sum of sixty dollars a day for every day thereafter. That by reason of the failure of the plaintiff to complete said building by the time aforesaid, the defendant had sustained damages. That the plaintiff used in the construction of. said building a large quantity of brick belonging to the defendant, the value of which the defendant claimed to recover from the plaintiff. The defendant demanded an additional “judgment against the plaintiff for the damage sustained by him as aforesaid, and for his counter-claim.”

The referee denied the motion; whereupon the defendant moved before Mr. Justice Monell, at special term, for leave to amend his answer in the manner before stated.

The justice denied the motion, and the defendant appealed.

J. *Townshend,*for the appellant, defendant.

*L. A. Lockwood,*for the respondent, plaintiff.

Monell, J.

"When this case was before me at special term, I entertained the opinion, and so held, that by recent amendments of the Code, referees possess all the powers of the *court*in granting amendments of pleadings; and that the referee in this case, having- denied the application made to him to amend the answer, his decision, if reviewable at all, could only be reviewed on .appeal from the judgment. A more careful examination of the subject, since the argument of this appeal,' has confirmed my opinion.

The power of the" *court*to allow amendments to pleadings has not been *enlarged*by the -Code. The act concerning *622amendments and jeofails, passed in 1788, and incorporated, into the revised laws of 1813, (1 *R. L.*117,) gave the same general power; and the Revised Statutes, (2 *R. S.*441, § 1,) allowed amendments, either in form or *substance,*for the furtherance of justice. The 173d section of the Code, is not more comprehensive than either of the statutes referred to; and the only part of the section which it is *claimed*enlarges the power, is in allowing other allegations,. “ *material to the case,”*to be inserted. *(Beardsley*v. *Stover,*7 *How. Pr.*294.)

Neither at common law, nor under any .of the previous statutes, did the courts ever claim the power to allow an amendment to an existing pleading, by the insertion of *a new and different cause of action or defense. (Sackett*v. *Thompson,*2 *John.*206. *Heneshoff*v. *Miller, Id.*295. *Trinder*v. *Durant,*5 *Wend.*72. *Williams*v. *Cooper,*1 *Hill,*637.) In *Trinder*v. *Durant,*it is said that the Revised Statutes, which *in broad terms*give the power, were not intended to change the practice which before was usual as to amendments. Under the' Code, however, in a few cases, it had been held that the court has power to allow as an amendment, the insertion of a new cause of action. *(Beardsley*v. *Stover, sup. Troy and Boston Railroad Co.*v. *Tibbits,*11 *How. Pr.*168. *Union Bank*v. *Mott,*11 *Abb.*42.)

The clause of the Code which allows an amendment, “ by inserting other allegations material to the *ease,”*does not, in my opinion, extend the power over amendments setting forth a new cause of action or .defense. What is the “ case ?” Is it not the facts stated in the pleading, as constituting the cause of action or defense ? Clearly it is. Then the allegations proposed to be inserted, must be material to the “ *ease ”*already made; and not merely material to another and wholly different case. An amendment is the correction of some error or mistake in a pleading already before the court, and there must, therefore, be something to amend by; whereas, the insertion of facts constituting a new cause of action or defense would be a *623substituted pleading, and not an *amendment*of an existing pleading.

The cases referred to, furnish no satisfactory reason for hdlding such an amendment to be within the power'of the court to grant. In two of the cases, *(Troy and Boston Railroad Company*v. *Tibbits,*and *Union Bank*v. *Mott,)*it is in effect merely *assumed*that the court has the power; in the other .case, *(Beardsley*v. *Stover,)*a criticism is attempted on the above section of the Code, which it was thought would aid in interpreting the statute, and cover the point decided. The amendment of that section in 1851, added the w-ords to the last clause “when the amendment does not change substantially the claim or defenseand it was said, that such amendment was restricted to the power to conform the pleadings to the facts proved. The limitation in the last clause to amendments which do not change the claim or defense, neither in terms, nor by implication, enlarges the power as to other amendments; and as there is nothing in the section increasing the power beyond that which had previously been exercised by the court, the decisions prior to the Code should prevail. This is expressly recognized in *Corning*v. *Corning,*(6 *N. Y. Rep.*97, 105;) *Walter*v. *Bennet,*(16 *id.*250;) *Whitcomb*v. *Hungerford,*(42 *Barb.*177;) *Davis*v. *Mayor, &c. of New York,*(14 *N. Y. Rep.*506.) In the last case, the power to amend is discussed, and it was held, that the court has not the power to add new parties.

It is provided by the statute that referees “ shall have the same power to grant adjournments, and to allow amendments to any pleading, * * * as the court *upon such trial,*upon the same terms and with the like effect.” *(Code,*§ 272.) A distinction has been attempted to be drawn between the powers.of the court while sitting in different branches of the same tribunal; and it is said that a judge *at the trial,*has not the same power to grant amendments, as is possessed by the *court. (Cases cited supra; and per Gray, J., Everett*v. *Vendryes,*19 *N. Y. Rep.*439.) The *624Oode ■ makes no such distinction; nor can there be such a distinction under the present organization of the courts. The 173d section gives the power of amendment *to '■‘■the court.”*It does not mean the court sitting in *hanlc,*or'at special term, but the court however constituted, while exercising any functions *as a court.*Has it ever been doubted that a judge sitting at *nisi prius*may allow an amendment of a pleading? I think not. Tet the Code gives power to the *court*only, and not to the judge. Has a judge, at a special term held for hearing motions, any greater power than a judge at a special term for the trial of actions with a jury? Certainly not. All issues are triable at a special term, either with or without a jury; and in either case the same general functions are exercised. A court requires merely the presence , of a competent number of judges, and a clerk; that constitutes the *judex*or incorporeal being called a *court.*It is well settled that unless the statute in conferring a power makes a distinction between the powers of a judge and the court, no distinction can exist. *(Smeeton*v. *Collier,*1 *Exch. Rep.*459.) All the powers of *the court*may be exercised by a single judge while sitting as a court, except where the power is confined to the court as a collective body. A single judge may hold a circuit or special term. He can preserve order, punish contempts, hear and decide cases. He does this under the power given to the *court,*and not to him as a judge thereof. And all statutes conferring jurisdiction, give it to the court, and not to the members composing the tribunal. In the cases referred to, the question is rather assumed than considered.

In *Woodruff*v. *Hurson,*it was held that the amendment contemplated a new defense *pro tanto,*and was not allowable. *Everett*v. *Vendryes*was put on the same ground; and the remark of the judge that the application to amend “at the trial,” was properly denied, amounts to nothing. *\*

In *N. Y. Marbled Iron Works*v. *Smith,*(4 *Duer,*362,) it was *625doubted if the court had the power to allow an amendment *at the trial,*letting in an entirely new defense. But the point was not decided, as the court held that the granting or refusing leave was discretionary, and not the subject of an exception. And in *Robbins*v. *Richardson,*(2 *Bosw.*248,) a similar doubt is suggested. In none of these cases, or any of the cases I have found, with a single exception, is any reason furnished for the supposed distinction; and the suggestion or doubt thrown out was not necessary for the decision of that case.

It is enough that the *court*may amend any pleading; and that the power is not limited to any branch or part of the tribunal. Convenience may require the adoption of a practice designating the place where all applications to the court may be made. But the statute makes no such designation ; nor does it make any distinction in the power, or the right to exercise it between the different branches of the court.

In the case of *The Union Bank*v. *Mott,*(18 *How. Pr. 506,)*the learned justice, who decided that case at special term, was of the opinion that the 170th section of the Code, alone, gave power to allow amendments *at the trial.*That section, in conjunction with the one immediately preceding it, has reference to *variances*between the pleadings and proofs, and authorizes the court to direct the facts to be found according to the evidence, (in other words to disregard an immaterial variance,) or, to order an immediate amendment of the pleading. Nothing is said in either section about this being done at the *trial,*and although questions of variance will naturally, and perhaps exclusively, arise on the trial, there is nothing, that I can find, to prevent the court from allowing an amendment under that section, at any other time. Besides, the power to conform the pleadings to the facts proved, under section 173, must usually be exercised at the trial. In *Cayuga County Bank*v. *Warden,*(2 *Seld.*19, 27,) an amendment *at the trial*under section 149, now section 173, of the Code was sustained. *626And in *Davis*v. *The Mayor, &c. of New York, (supra,)*the amendment was made at' the trial, under section 173, and was disallowed *only*because there was no power to add parties.

In view of all these sections, therefore, there is not, in my opinion, any doubt, that as regards the allowance of amendments of pleadings, a judge presiding at the trial of a cause with a jury, possesses all the powers of the court, and can allow them in the same manner and with the like effect as .the court, sitting in any other organized form. If I am correct in this, then the words used in the 272d section, giving to referees the same power, *“ as the court upon such trial,”*would seem to be unnecessary, inasmuch as the court has no other, greater or less power “ upon the trial,” in respect to amendments, than at special term, or. in bank, or otherwise.

Referees are no longer officers of, or under the control of, the court. They become by appointment an independent tribunal, ■ having such powers as are given by statute, and their decisions are reviewable only on appeal from their judgments.

The legislature has from time to time increased the power, and added to the dignity of this tribunal; and it was the plain intention of the legislature, it seems to me, that it should possess-all the powers, and exercise all the functions of a court, independently, and without accountability to any other tribunal; and that its decisions should be subject to review only on appeal.

In this view, notwithstanding the peculiarity of the language of the 272d section, I am of the opinion that referees now possess all the powers of the court; and their allowance or disallowance of an amendment can only be reviewed, if reviewable at all, in the manner other decisions are reviewed, on appeal. •

I am in favor, therefore, of affirming the order, but without costs to either party, as the question is new,

*627The effect of this affirmance will leave the appellant at liberty to renew his motion to the referee, under this exposition of his power to allow the amendment.

Garvin, J'. concurred.

Barbour, J. (dissenting.)

So far back as our knowledge extends, it has been the general practice and tendency of all common law courts to follow precedents and adhere to rules established by decisions. Ho sound jurist finds fault with this; for, although, as we all feel and know, erroneous decisions have, from time to time, been made and. followed, such general practice has, on the whole, worked beneficially, and has created and established the beautiful science of the law now contained in our books. Occasionally, however, it has been found that a strict adherance to technicalities and precedents has so worked injustice to parties, that the legislature has been compelled to relieve them and the courts by a relaxation of the rule. Such was the case at the time of the enactment of the statute of jeofails, in the time of the 3d Edward, (14 *Edw.*3, st. 1, *ch.*6;) by which a party, on coming into court and suggesting or acknowledging that he had, by oversight or mistake, failed (j-ai-faille, *fr.)*to conform to the strict rules of law, in his pleading or proceeding, was permitted to amend .the same; or, rather, in practice, to have such error disregarded. (3 *Black. Com.*407. 1 *Saund. Pl.*228, *n.*1. *Cheetham*v. Tillotson, 4 *John.*499.) And see, also, *Stats.*32 *Hen.*8, *c.*30; 18 *Eliz. c.*14; 21 *Jac.*1, *c.*13; 16 *Car. 2, c.*8; 4 *Anne, c. 16;*9 *Geo. 4, c. 55;*3 *and*4 *Will.*4, *c.*42, § 23; *Halhead*v. *Abrahams,*(3 *Taunt.*80.)

In our state, at an early day, the legislature enacted that “ The court in which any action shall be pending, shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time *628before judgment rendered therein.” (1 *R. L.*117. 2 *R. S.*424, § 1.)

In construing that statute, and putting it in operation, our courts held that, when one of the parties amended his pleading, the other was entitled, if such change made it necessary and proper, to plead *de novo. (Webb*v. *Wilkie,*1 Caines, 153. *Pease*v. *Morgan,*7 *John.*468.) The principle of the rule thus established was incorporated in the Revised Statutes of 1830, as follows: “If such amendment be made to any pleading in matter of substance, the-adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended.” (2 *R. S.*424, § 2.)

The language of the two short, consecutive sections of the statute in question is so concise ' and plain as to leave no room for doubt that it was the intention of the legislature to vest in the courts almost unlimited power, in the exercise of a sound judicial discretion, to allow amendments to pleadings, in furtherance of justice, by introducing new matter, of the' same general class, saving, however, the rights of the opposite party; and the very numerous decisions found in the reports show that such has been the construction which the courts have given to the act. Thus we find that in *Turner*v. *Dexter,*(4 *Cowen,*555,) the defendant was permitted, on motion, to add to his plea of *non est factum,*in an action upon covenant, a notice of special matter'to be given in evidence as a defense. The court said that though there was a doubt whether the defendant could avail himself of the new matter at law, it would not, on applications to amend, inquire into the merits of the amendment further than to see that it was not plainly frivolous. So, too, in *Harris*v. *Wadsworth,*(3 *John.*257,) the plaintiff was permitted, in an action on a covenant of seisin, to amend by adding a count on a covenant for quiet enjoyment, contained in the same deed. In *Graham*v. *Woodhull,*(1 *Caines,*497,) where the defendant was sued for slander in saying -that the plaintiff was perjured, and had pleaded *629in justification a perjury before a master in chancery, he was allowed to amend by adding another perjury before a city recorder. In *Vermilya*v. *Beatty,*(2 *How. Pr.*57,) leave was given to the defendant to amend his plea of the general issue, by adding a plea *ne unques executor. (See also Bank of Chilicothe*v. *Dodge,*2 *How. Pr.*42, *and Frost*v. *Flint,*3 *id.*14.) But, in *Coit*v. *Skinner,*(7 *Cowen,*401,) leave was refused to the defendant to amend by pleading the statute of limitations, upon the ground that such amendment would not be in furtherance of justice, because*contrary to equity; and so in *Jackson*v. *Varick,*(2 *Wend.*294,) and *Wolcott*v. *McFarlan,*(6 *Hill,*227.) So, too, in *Williams*v. *Cooper,*(1 *Sill,*637,) an amendment to a declaration' in slander, setting up the uttering of other words, and constituting another cause of action, was refused by the court, because such new cause of action was barred by the statute of limitations, and the plaintiff did not, originally, intend to declare upon it; and in *Trinder*v. *Durant,*(5 *Wend.*72,) leave to amend a plea in abatement was denied, upon the ground that a plea in abatement was not amendable. But I find no case in which an amendment setting up a new cause of action, or a new defense -of the same nature or class has been refused without some similar special reason, making it unjust to grant the relief.

I see no reason for supposing that the provisions of the Revised Statutes touching amendments, have been abrogated, or, in any degree, impaired by the Code. They have not been repealed in terms; nor, in my judgment, are they inconsistent with the enactments of the Code upon the subject. *(See Code,*§§ 173, 468.) It is true that a subsequent statute, making a different and repugnant provision upon the subject, is not to be construed as an explanatory act, but as a repeal of the former, upon the ground that *leges posteriores, priores contrarias abrogant. (Columbian Manufac. Co.*v. *Vanderpoel,*4 *Cowen,*558. *Dash*v. *Van Kleeck,*7 *John.*477.) But repeals by implication are disfavored by the law; and are only allowed where inconsistency and *630repugnancy are plain and unavoidable. ( *Vin. Abr.*525, *pl.*132. *Dwar. on Stat.*674. *McCartee*v. *Orphan*Ass. *Soc.*9 *Cowen,*437. *Mayor of New York*v. *Walker,*4 *E. D. Smith,*258.) Indeed, it appears to me that the provisions of the Code are merely cumulative. *(See further, Williams*v. *Potter,*2 *Barb.*316. *Bowen*v. *Lease, 5 Hill,*221. *People*v *Deming,*13 *How. Pr.*441. *Van Rensselaer*v. *Snyder,*9 *Barb.*302. *Livingston*v. *Harris,*11 *Wend.*329. *S. C.*3 *Paige,*528. *Harrington*v. *Trustees of Rochester,*10 *Wend.*547. *Donaldson*v. *Wood,*22 *id.*395.)

Be that as it may, however, I think it was the intention of the legislature, in the passage of the Code, to make, at least, as liberal provisions for the allowance of amendments as had theretofore existed; and that it did not design to deprive courts of any portion of the powers they had posséssed, in that regard, under the statutes referred to, for more than five hundred years.

It is true that the notes of the commissioners of the Code, which accompanied and formed a part of their report to the legislature, are not, absolutely, controlling authorities in the interpretation of its provisions. *(Forrest*v. *Forrest,*10 *Barb.*46.) But, like the preamble to an act, or the petition on which it was obtained, *(see Jackson*v. *Gilchrist,*15 *John.*89; *Constantine*v. *Van Winkle,*6 *Hill,*177; *Furman*v. *The Mayor, &c. 5 Sandf.*16,) those notes may well be taken into view in considering such intention.

In their note, heading the chapter “ Of mistakes in pleadings and amendments,” the commissioners say: “To that class of objectors who assert that the pleadings Ave propose will sometimes prevent a party from proving the real state of his case, when it was imperfectly known to him at the commencement of the action, or imperfectly explained to his counsel, we present these sections as an answer. Ho person, under our system, need be turned out of court, or lose his remedy, for variance of any kind. The first three sections—(sections now numbered 169, 170 and 171)—pro-vide for variances discovered at the trial; *and the rest pro**631*vide a means of amendment of the most liberal character; as liberal, indeed, as we could devise.”*In view of this, it is impossible to believe that the commissioners designed to diminish the powers which courts then had under the existing law; and as the entire chapter was enacted, substantially, as reported, we may, I think, safely and reasonably assume that the legislature adopted the intentions and opinions of the expert and able lawyers to whom had been confided the duty of drawing up and presenting a new and entire system of practice.

The 173d section of the Code declares that “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, * * * * 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 defense, by conforming the pleading to the facts proved.” [It may here be remarked that the words, “ when the amendment does not change, substantially, the claim or defense,” were contained in the sentence as reported and originally enacted, but were stricken out in 1849, and in 1851 reinstated.]

Except for the possible ambiguity arising from the use of the word “ case,” in this section, it can hardly be doubted that its language, alone, independent of the evident design of the legislature, as above suggested, is sufficiently broad and comprehensive to confer upon the courts all the powers, at least, that they possessed under the Revised Statutes touching amendments; and, upon careful consideration and reflection, I am satisfied that the employment of that word, in its connection, does not change the result. For, as I understand it, the word “case,” is neither technically nor properly applicable to pleadings raising issues. A complaint, for instance, alleging certain facts, with an answer denying them, does not constitute a “ case; ” but it is only when such facts are admitted or proven that a “ case ” is made; and it may then be submitted and determined. Ror *632could the legislature have designed to use the word in the sense of a “ case ” made by the pleadings, or either of them. For, if so, as a pleading consists of “ material allegations,” and no others, that would be the “case” intended; and there could be no case unless the allegations were sufficient to constitute one. How, then could allegations, material to that case, be added ? ' I think the legislature intended to ■use the word “ case ” in the sense in which it is popularly undérstood as applied to the general subject matter of the difference between the parties; and that they designed to authorize the insertion, on motion, by way of amendment before trial, of any material allegations, of the same class, that might properly have. been embraced in the original pleading, and which the party had omitted to include through mistake, oversight, ignorance of the facts, or even want of skill, leaving the question of terms and conditions as fixed by the Revised Statutes, or subject to the direction of the court. This opinion seems to be justified by a current of decisions and opinions, all running in one direction. For instance, in *Jackson*v. *Saunders,*(1 *Code Rep.*27,) the plaintiff was permitted to amend his complaint by substituting a cause of action on special contract for a common count; in *Keese*v. *Fullerton, (Id.*52,) a new and material averment was inserted; in *Merchant*v. *N. Y. Life Ins. Co.*(2 *Sandf.*669,) the amount claimed in an action on contract was allowed to be increased by an amendment; in *Chapman*v. *Webb,*(1 *Code Rep. N. S.*388,) the plaintiff was permitted to insert an allegation of fraudulent representations in a complaint for goods sold and delivered; in *Beardsley*v. *Stover,*(7 *How.*294,) the. defendant had leave, on terms, to amend his answer by inserting, by way of recoupment, a claim founded upon contract, for $4000, not in the original answer; and in *Harrington*v. *Slade,*(22 *Barb.*161,) the defendant was allowed to set up a new and independent defense. ' •

In the latter case, which was decided at a general term of the Supreme Court, held by Justices Allen, James, Rose*633krans and Paige, on an appeal from the order granting leave, Judge Paige said: “Under the provisions of *the Revised Statutes*and the Code, it is the duty of the court to allow amendments, in furtherance of justice, upon such terms as shall be just and proper. Whenever, therefore, the court can now see that justice would be furthered by an amendment of the pleadings and proceedings in an action, it should grant the amendment, if asked for, upon terms just to the opposite party.” The language of Judge Harris a sound and careful jurist—in *Troy and Boston R. R. Co.*v. *Tibbits,*(11 *How. Pr.*168,) is still stronger. He says: “ I regard it as very much a matter of course to allow any party to shape his own pleadings to suit himself; and, for that purpose, to permit him, at any time before trial, to amend his pleadings so as to present his own views of the questions to be litigated, upon such terms as may be deemed equitable. There is now no restriction upon the power of the court to allow such amendments, even though the effect be to change entirely the whole cause of action, or the grounds of the defense.” The same ruling, and for similar reasons, was made by Judge Brady, of the common pleas, in *Daguerre*v. *Orser,*(3 *Abb.*86.) See, also, *Van Ness*v. *Bush,*(14 *id.*36;) *Bacon*v. Comstock, (11 *How.*197.) The last paragraph of Judge Harris’ opinion, above quoted, should, doubtless, be taken with the qualification that the amendment should not turn the action into one of a different class or nature; as that cannot, usually, if ever, ‘ be done in furtherance of justice. *(See Morris*v. *Rexford,*18 *N. Y. Ref.*557; *Lane*v. *Beam,*19 *Barb.*51; *Andrews*v. *Bond,*16 *id.*633; *Ransom*v. *Wetmore,*39 *id.*104.)

But the court cannot, properly, upon the trial, authorize an amendment which constitutes, or purports to constitute, a new cause of action, or a new and distinct defense. For, not only does section 2 of the chapter “ of amendments ” of the Revised Statutes give an absolute right to the opposite party to answer such amended pleading, if still in force, *634as I think it is, (2 *R. S.*424, § 2,) hut, under the Code itself, independent of the statute in question, he is entitled to twenty days consideration, after the service of a pleading calling for an answer or reply, or to which he may demur, and may, within that time, interpose such answer, reply or demurrer, or move to strike out, or to make the same more definite and certain. *(Code,*§§ 153, 160.) These rights of the opposite party, saying nothing of the propriety of allowing him time to prepare for opposing the motion, are quite inconsistent with the idea that the legislature designed to confer upon the court, or tha+ it has, power to allow amendments of that character, in the midst of a trial before it. *(See,*upon this general subject, *Union Bank*v. *Mott,*10 *Abb.*372; *N. Y. Marb. Iron Works*v. *Smith, 4 Duer,*362; *Waldheim*v. *Sichel,*1 *Hilt.*45; *Robbins*v. *Richardson,*2 *Bosw.*248; *Code,*§ 173, *and Codifiers’ note to chap.*6.)

Nor, certainly, has a referee any greater power in this regard than is possessed by the courts. So the Code declares, by necessary implication, at least; (§•§ 173, 272;) and to that effect are the decisions. *(See Woodruff*v. *Hurson,*32 *Barb.*557, *and cases last cited.)*Indeed referees have no powers except such as are expressly conferred upon them by the statute; and no power is there given them to allow amendments, except upon the trial, and in cases in which it might there be done by the court itself. It appears to me erroneous to suppose that a referee is to be considered, in any degree, as substituted in place of the court, in regard to general jurisdiction. For all purposes, except the trial, and such things as the Code expressly authorizes him to do upon such trial,- the jurisdiction remains in the court; *(Mathews*v. Jones, 1 *E. D. Smith,*429; *Holmes*v. *Slocum,*6 *How.*218;) and, even in regard to that, the acts of' the referee may, in some instances, be reviewed, and his proceedings controlled by the court, on motion, and while the reference is still pending. So it was held in *Union Bank*v. *Mott,*(19 *How.*114;) and, again, in *Billings*v. *Baker,*(6 *Abb.*213,) where the referee had refused to permit amendments *635to "be made. *(See, also, Cooley*v. *Huntington,*16 *Abb.*384, *note.)*So, too, the time for making the report may he extended; *(Livingston*v. *Gidney, 25 How.*1;) and, it can. hardly he doubted that, for palpable misconduct, the court has power to remove a referee, on motion, at any time; or that it may direct a commission to be issued, or grant an injunction, pending a reference, or, for sufficient cause, stay proceedings thereon.

Eor these reasons, I am of opinion: *First.*That a referee has no power, upon a trial before him, to allow a party to amend his pleading by inserting a new and distinct cause of action or ground of defense, omitted by the fault of such party, which calls for an answer or reply. *Second.*That notwithstanding an action has been referred to a referee to hear and determine, the court has power, and, when in furtherance of justice, it is its duty, on motion, to authorize such an amendment, by its order, on such terms as shall be just.

In the case before us, the amendment sought to be introduced by the defendant constituted a new and distinct ground of defense, by way counter-claim; and, for that reason, the motion so to amend was properly denied by the referee.

But the affidavits which were read before the court at special term, upon the motion there made to amend, sufficiently prove, I think, that the facts constituting this new .ground of defense were not fully known even to the defendant himself, when the original answer was put in. Be that, however, as it may, it is quite apparent that the new facts which the defendant asked leave to insert in his sworn answer by way of amendment, constitute a good and sufficient ground of defense; and the evidence taken without objection upon the trial tended to prove that such facts were true.' "We may safely assume, therefore, that, the proper allegation, in that regard, ought to have been inserted in the original pleading, and must have been omitted through the ignorance, oversight, or want of skill, of the defendant or his attorney; and there can be no doubt that *636justice would have heen furthered by allowing the proposed amendment on terms. The learned judge erred, therefore, in denying the motion.

The order is appealable, inasmuch as it affects a substantial right; *(Union Bank*v. *Mott,*11 *Abb.*42; *Johnson*v. *McIntosh,*31 *Barb.*267;) as well as for the additional reason that the motion was denied because of a supposed want of power to grant it. *(McElwain*v. *Corning,*12 *Abb.*16. *Russell*v. *Conn,*20 *N. Y. Rep.*81.)

The order appealed from should be reversed, with costs of appeal; leaving the defendant to renew his motion, if he shall be so advised.

Order affirmed.