Van Brunt, J.
[After stating the facts as above.]—The appellant has urged upon this appeal the following reasons why the motion to set set aside the decree of divorce should have been granted:
1st. Because the affidavit of the service of the summons and complaint is insufficient.
[50]*502d. Because the referee erred in permitting the plaintiff to testify as to the identity of the photograph.
3d. Because the plaintiff, before the granting of the divorce, had been guilty of adultery.
4th. Because the testimony before the referee was insufficient.
5th. Because the referee allowed the amendment to the complaint.
6th. Because a motion to confirm was made before Judge Robinson, and there is no competent evidence of any leave to renew.
7th. Because the notice of motion for confirmation of report stated that the motion would be made to one of the judges •at chambers, instead of stating that the application would be made to the court.
8th. Because the court had no power to make the order under which the action was changed from an action for a separation to one of absolute divorce.
9th. Because, even if the court had such power, under the circumstances of the case at bar, the granting the order was an improper exercise thereof.
In respect to the objection that the affidavit of the service of summons and complaint is defective, it is sufficient to say that this is an irregularity which can be remedied at any time by leave of the court, by filing a new affidavit of service, but in this’ case such a course would hardly be deemed necessary, as the record shows beyond a doubt that the summons and complaint were actually served upon the defendant.
The second objection, that the referee erred in permitting improper testimony, would not form a sufficient ground for setting aside this decree, because there was other testimony which was, if true/sufficient to establish the identity of the defendant.
The third objection, that the plaintiff before the granting of the divorce, had been guilty of adultery, under the circumstances of this case, would have hardly been a sufficient ground to refuse a decree if known to the court at the time the decree was applied for. The adultery was committed entirely inno[51]*51cently, the plaintiff believing at the time of her remarriage that she had been legally divorced from the defendant and had a perfect right to remarry. Under such circumstances the discretion of the court ought not to allow such a mistake to militate against the securing of a decree to which the plaintiff would otherwise have been, beyond question, entitled.
The objection that the testimony before the referee was insufficient does not form a ground for setting aside the decree. The sufficiency of the testimony was duly passed upon by the court below, and a decree should not be disturbed after the lapse, of several months, unless there was entire failure of evidence.
It may be that the referee erred in allowing the amendment to the complaint, but as the evidence tended to establish the other cause of action mentioned in the amended complaint, the defendant has not been damnified by the amendment.
The sixth objection, that the motion to confirm the referee’s report was first made before Judge Robinson and there is no competent evidence of a leave to renew, must be overruled, because this is a mere irregularity, and as due notice of the motion was given, the objection should then have been taken and not allowed to remain until months after judgment.
The seventh objection, that the notice of motion for confirmation of the referee’s report stated that the motion would be made to one of the judges of the court at chambers, instead of stating that the application would be made to the court, would have been fatal to the decree if the venue of the action had been laid in any county of the State except the county of New York. An application to a judge at chambers is not an application to the court, but section 770 of the present Code provides that: “in the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits.” This section makes the application for confirmation to a judge at chambers just as regular as though it had been made to the judge while holding a special term of the court. The failure to comply with rule 83 was a mere irregularity which in no way affected the jurisdiction of the court.
[52]*52The eighth objection, that the court had no power to make the order allowing the service of the amended complaint, seems to- me to be entirely fatal to the decree in this action.
It must be conceded that, under section 542 of the present Code, within twenty days after the service of a complaint the plaintiff may amend it of course and allege an entirely new cause of action, because this section contains no restriction as to the nature of the amendments. The only other section of the Code authorizing the court to allow amendments is as follows :
“ § 723. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect in the pleadings or other proceedings which does riot affect the substantial rights of the advérse party.”
This section says that the court may upon the trial or at any other stage of the action, amend any process, pleading, &c., in what respect ? By adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defense, by conforming the pleadings or other proceeding to the facts proved.
It is very apparent that this section gave no authority to the court to change the present action from one for separation to-one for an absolute divorce. The clause allowing an amendment by inserting an allegation material to the case, does not provide for the" case at bar, because this provision undoubtedly applies to the insertion of an allegation material to the cause of action attempted to be set out in the complaint, and can have [53]*53no relevancy to an entirely new cause of action, which was never dreamed of at the time of the commencement of the suit. ETor can such an amendment be called the correcting a mistake, because the allegations tending to establish a cause of action for separation could not have been inserted by mistake for those for absolute divorce contained in the amended complaint.
The action for absolute divorce is entirely different in every respect from an action for a separation. They have no relation one to the other, and proceed under entirely different divisions of the statute law. If an amendment, of this kind can be allowed, then an action for specific performance can be amended into an action for absolute divorce.
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Van Brunt, J.
[After stating the facts as above.]—The appellant has urged upon this appeal the following reasons why the motion to set set aside the decree of divorce should have been granted:
1st. Because the affidavit of the service of the summons and complaint is insufficient.
[50]*502d. Because the referee erred in permitting the plaintiff to testify as to the identity of the photograph.
3d. Because the plaintiff, before the granting of the divorce, had been guilty of adultery.
4th. Because the testimony before the referee was insufficient.
5th. Because the referee allowed the amendment to the complaint.
6th. Because a motion to confirm was made before Judge Robinson, and there is no competent evidence of any leave to renew.
7th. Because the notice of motion for confirmation of report stated that the motion would be made to one of the judges •at chambers, instead of stating that the application would be made to the court.
8th. Because the court had no power to make the order under which the action was changed from an action for a separation to one of absolute divorce.
9th. Because, even if the court had such power, under the circumstances of the case at bar, the granting the order was an improper exercise thereof.
In respect to the objection that the affidavit of the service of summons and complaint is defective, it is sufficient to say that this is an irregularity which can be remedied at any time by leave of the court, by filing a new affidavit of service, but in this’ case such a course would hardly be deemed necessary, as the record shows beyond a doubt that the summons and complaint were actually served upon the defendant.
The second objection, that the referee erred in permitting improper testimony, would not form a sufficient ground for setting aside this decree, because there was other testimony which was, if true/sufficient to establish the identity of the defendant.
The third objection, that the plaintiff before the granting of the divorce, had been guilty of adultery, under the circumstances of this case, would have hardly been a sufficient ground to refuse a decree if known to the court at the time the decree was applied for. The adultery was committed entirely inno[51]*51cently, the plaintiff believing at the time of her remarriage that she had been legally divorced from the defendant and had a perfect right to remarry. Under such circumstances the discretion of the court ought not to allow such a mistake to militate against the securing of a decree to which the plaintiff would otherwise have been, beyond question, entitled.
The objection that the testimony before the referee was insufficient does not form a ground for setting aside the decree. The sufficiency of the testimony was duly passed upon by the court below, and a decree should not be disturbed after the lapse, of several months, unless there was entire failure of evidence.
It may be that the referee erred in allowing the amendment to the complaint, but as the evidence tended to establish the other cause of action mentioned in the amended complaint, the defendant has not been damnified by the amendment.
The sixth objection, that the motion to confirm the referee’s report was first made before Judge Robinson and there is no competent evidence of a leave to renew, must be overruled, because this is a mere irregularity, and as due notice of the motion was given, the objection should then have been taken and not allowed to remain until months after judgment.
The seventh objection, that the notice of motion for confirmation of the referee’s report stated that the motion would be made to one of the judges of the court at chambers, instead of stating that the application would be made to the court, would have been fatal to the decree if the venue of the action had been laid in any county of the State except the county of New York. An application to a judge at chambers is not an application to the court, but section 770 of the present Code provides that: “in the first judicial district, a motion which elsewhere must be made in court, may be made to a judge out of court, except for a new trial on the merits.” This section makes the application for confirmation to a judge at chambers just as regular as though it had been made to the judge while holding a special term of the court. The failure to comply with rule 83 was a mere irregularity which in no way affected the jurisdiction of the court.
[52]*52The eighth objection, that the court had no power to make the order allowing the service of the amended complaint, seems to- me to be entirely fatal to the decree in this action.
It must be conceded that, under section 542 of the present Code, within twenty days after the service of a complaint the plaintiff may amend it of course and allege an entirely new cause of action, because this section contains no restriction as to the nature of the amendments. The only other section of the Code authorizing the court to allow amendments is as follows :
“ § 723. The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect in the pleadings or other proceedings which does riot affect the substantial rights of the advérse party.”
This section says that the court may upon the trial or at any other stage of the action, amend any process, pleading, &c., in what respect ? By adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defense, by conforming the pleadings or other proceeding to the facts proved.
It is very apparent that this section gave no authority to the court to change the present action from one for separation to-one for an absolute divorce. The clause allowing an amendment by inserting an allegation material to the case, does not provide for the" case at bar, because this provision undoubtedly applies to the insertion of an allegation material to the cause of action attempted to be set out in the complaint, and can have [53]*53no relevancy to an entirely new cause of action, which was never dreamed of at the time of the commencement of the suit. ETor can such an amendment be called the correcting a mistake, because the allegations tending to establish a cause of action for separation could not have been inserted by mistake for those for absolute divorce contained in the amended complaint.
The action for absolute divorce is entirely different in every respect from an action for a separation. They have no relation one to the other, and proceed under entirely different divisions of the statute law. If an amendment, of this kind can be allowed, then an action for specific performance can be amended into an action for absolute divorce.
The authorities which have been cited by the plaintiff’s counsel as precedents for this order are the cases of Brown v. Leigh (49 N. Y. 78), and Troy & Boston R. R. Co. v. Tibbitts (11 How. Pr. 170). The former case does not meet the question, as all that that case decides is that under section 172 of the old Code, and section 542 of the new Code, which allows amendments of course within twenty days after service of a pleading, a new cause of action may be set up by way of amendment. It is true that the opinion contains a dictum as to the interpretation of section 173, but it nowhere considers the restrictions expressly made to the power of amendment in section 173, where such amendments are not make upon the trial. In the case of Troy & Boston R. R. Co. v. Tibbits (11 How. Pr. 170), which was a special term decision, no such question was involved. The learned judge expressly states as a ground of allowing the amendment asked for, that the subject-matter of the action would remain the same notwithstanding the amendment. It is true that he says that there is now no restriction upon the power of the court to allow amendments, even though the effect be to change entirely the cause of action or the grounds of defense, but this statement was not required for the determination of the motion before him and therefore is of no authority whatever.
In the case of Ford v. Ford (53 Barb. 526), which was a special term decision, Mr. Justice James uses this language: [54]*54“ Before the Code this court possessed and exercised the power of allowing amendments to pleadings upon the application of either party; a new cause of action, or a new defense, was often allowed by amendment. It was a power necessary to the administration of justice ; and the permission for its exercise was obtained by application to the special term, upon notice.”
That this language was loosely used is perfectly apparent when we consider his language in criticising the case of Woodruff v. Dickie (31 How. 164). He then says: “ That portion of the opinion in Woodruff v. Dickie (31 How. Pr. 164), which asserts, ‘ that the courts never claimed the power, either at common law or under any previous statutes, to allow an amendment to an existing pleading by the insertion of a new and different cause of action or defense,’ is unsound. It is true, courts never claimed the power of substituting one kind of action for another by amendment, as tort for assumpsit, or vice versa; but the power to add another cause of action of the same nature, or another defense that went to defeat the action, Avas always claimed, although permission. was not always granted.”
Here he expressly limits the power of amendments to the addition of a new cause of action of the same nature, which is very different from changing entirely the whole scope of the action.
The learned justice then cites the case of the Union Bank v. Mott (19 How. Pr. 267), and says: “ I therefore repeat that, independent of the Code, this court at special term on motion, at any time before verdict, has the power to allow amendments to pleadings, by permitting the insertion of a new cause of action, or new defense,” and cites Beardsley v. Stover, (7 How. Pr. 294), and Harrington v. Slade (22 Barb. 161), both of which cases related to amendments setting up new defenses, which is very different from an amendment setting up a new cause of action in a complaint. Every defense to the cause of action set forth by the complaint may be material, and an allegation setting up a defense, may be an allegation material to the case as set forth in the complaint.
In the case of Woodruff v. Dickie (31 How. Pr. 164), which [55]*55is a general term decision of our superior court, the question is discussed, and it is stated that the court has no power to amend by the insertion of facts constituting a new cause of action, but in that case the question was not at all involved.
In the case of Van Syckels v. Perry (3 Robertson, 621), it is stated that an amendment cannot be allowed, the effect of which would be to introduce a new cause of action, but this question was not involved, as the object of the amendment in that case was to add a new party.
In Wright v. Storms (3 Code R. 138,) there is a dictum to the same effect.
In the case of Diamond v. Williamsburgh, Ins. Co. (4 Daly, 494), Chief Justice Daly reviews the history of the law of amendment at great length, in a learned and able opinion, and from the authorities deduces this rule as prevailing before our statutes: that the defendant will be allowed to amend his plea at a stage of the case when the plaintiff would not be allowed to amend his declaration: and that the Code has not changed the law in that respect. And in that case it is held that the court may at any time before the trial allow the defendant to amend his answer by setting up a new defense. A new defense is certainly material to the case made by the plaintiff, as it may defeat any recovery by her. Not so a new cause of action, which has no relation to the one already set forth. The plaintiff may bring a new action for that cause.
There is no case which is an authority upon this question. It does not seem to be questioned that under the provisions of the Code, the court has no power to allow an amendment to a complaint which substitutes one cause of action for another, but it seems to be inferred that the court has some power of amendment independent of the Code. It would probably be true, if there had been no provision in the Code in respect to amendments, that the court might have had an inherent power to grant amendments in furtherance of justice, but when the legislature have prescribed in what cases the court can allow amendments to a pléading, although no negative words are used in the statute, the court is necessarily limited to the cases prescribed by law.
[56]*56The act of the legislature is the expression of the legislative will, and is a conferring of a power upon tire court, and excludes the right of the court to act under the assumption of an inherent power which might have been resorted to, if there had been no legislative action upon the subject.
Suppose a plaintiff had commenced an action upon one cause, and he subsequently finds out that he had another cause of action, against which, at the time he discovered its existence, the statute of limitations had run. Can it be that the court would have the power under the fiction of an amendment to the complaint in the action pending, to add the new cause of action, and deprive the defendant of the plea of the statute of limitation ? I say, clearly not, and yet all this must be conceded, if it is to be held that the court can amend 'by adding new causes of action.
I am of the opinion therefore, that the court had no power to allow an amendment to the complaint which is the foundation of the decree in this action, and that the decree is void, and should be set aside.
The only remaining question is the one raised, that the defendant has dismissed his attorney, and that his attorney has no right to prosecute this appeal.
This would be undoubtedly true in an ordinary action, but actions of divorce are peculiar, in that the court of its own motion is bound in actions of this character to see that there is no collusion, fraud or irregularity in the proceedings. If the court is of the opinion that a decree of divorce is void, it is its 'duty, upon giving a hearing to the party to be affected by the action of the court, to set aside the decree upon its own motion, rather than leave such a decree upon its files, to be hereafter, because of its nullity, the source of the grossest injustice to parties not now in existence.
The parties cannot, by any arrangement, collusive or otherwise, deprive the court of this power or prevent it from exercising this duty.
But even if the court had the power to grant the motion for amendment, no such amendment could be allowed as was made in the case at bar. To allow a complaint to be changed [57]*57from an action for separation to an action for absolute divorce seven years after the commencement of the action, and that too without any personal notice to the defendant, and while the papers upon which the application is founded show that he was not in a condition to defend, seems to be an amendment not in the furtherance of justice.
If the plaintiff had a cause of action for absolute divorce there was no hardship in compelling her to bring her action for that purpose after the service of the summons and complaint.
It appeared by the papers upon which the application was made that the plaintiff knew of the whereabouts of the defendant, and he certainly should have had notice of the charges made against him. The "cases cited by the learned chief justice in the case of Diamond v. The Williamsburgh Ins. Co., supra, show conclusively that such an amendment should never have been granted. His attorney of record disclaimed any right or authority to appear in such a case, as he undoubtedly had not; and as he was ignorant of the whereabouts of the defendant, he had no means of notifying him of what was being done. By this means a decree was obtained against the defendant without the slightest opportunity for him to be heard as to the same.
The sanctioning of such a precedent as would he established in this case if this decree should be allowed to stand would be but the beginning of the greatest abuses. If a party desires to obtain relief in an action entirely different from that sought for in an action already hegun, let a new action be commenced by the service of process upon the defendant, who then will have notice of the new claims made against him.
A party should not be allowed, by commencing an action for one form of relief, to lull the defendant into security, and then when he is out of the way, without any notice to him, to change entirely the cause of action and obtain relief which is in no way foreshadowed by the action as began. The order appealed from should be reversed and an order made vacating the decree of divorce entered herein, with costs of motion, and costs and" disbursements on appeal.