| N.Y. App. Div. | Jan 8, 1908
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.