Macpherson v. Ronner

8 Jones & S. 448

• Court: The Superior Court of New York City
• Decided: February 7, 1876
• Status: Published

Opinion

By the Court.—Van Vorst, J.

If the order made by the referee during the trial allowing the complaint to be amended was for any sufficient reason objectionable, and the defendant intended to contest it by a special motion, instead of proceeding with the trial, and giving evidence with respect to the subject-matter of the amendment, he should have at once applied to the court at special term for an order setting aside the amendment. There was abundant opportunity for this within the twenty days allowed the defendant to serve the amended answer, before further proceedings could be had before the referee.

In this way the matter could have been simply and expeditiously disposed of if a motion was at all proper.

I should say that it was too late to raise by motion an, objection to the amendment after proceedings on the trial have been had under it, and the referee has reported, and judgment upon the report has been actually entered.

By this final step the report has become incorporate with the judgment, and can not be detached and considered apart from it. The report and judgment must stand or fall together. To be effective, a motion simply to set aside the report of a referee should be made before judgment is finally entered ; if successful, it would prevent a judgment. It would be idle to set aside the report and allow the judgment to stand.

The defendant made his objection on the trial, at the time the amendment was asked for, and he excepted to the ruling of the referee on the subject.

He has taken an appeal from the judgment. If any error was made by the referee in allowing the amendment, the case on appeal will disclose it.

The court a‘t general term, when the appeal is heard, will determine whether the amendment was within the power of the referee to order, or if discretionary, whether the discretion was abused. We are of opinion that the defendant having sought a review of the proceedings on the trial by appeal, and which seems tobe the appropriate remedy, should be left to redress in that proceeding, if any be proper.

It is not necessary at this time, with an appeal pending, to express any opinion as to whether or not the amendment should or could have been allowed by the referee.

The order appealed from should be affirmed with costs.

Sedgwick, J., concurred.