21 N.Y.S. 226 | N.Y. Sup. Ct. | 1892
The original complaint in this action was for an alleged breach of contract set out in the complaint, and asked to recover damages for such breach. The original answer was a denial, and also an alleged performance of the contract. The issue thus framed was duly referred by consent and stipulation of the parties to a referee to hear and determine. On the appearance before the referee for the trial
The first and perhaps the principal contention of the appellant on this appeal is that the referee had no power to grant this amendment at the trial. The powers of a referee in amending pleadings at the trial are the same as those possessed by the court at the trial. Code Civil Proc. § 1013. The power of the court to amend pleadings at the trial is given and prescribed by section 723 of the Code of Civil Procedure as follows: “The court may upon the trial * * * amend any process, pleading, or other proceedings * * * by inserting any allegation material to the case.” The demand for judgment is now an essential part of the complaint, and one of the statutory requirements of what the complaint must contain. Section 481 of the Code provides that “the complaint must contain * * * (3) a demand of the judgment to which the plaintiff supposes himself entitled.” It is true that by section 723 of the Code the referee was vested with all the powers of the court in that respect, and could, on the motion of the plaintiff, amend the complaint “by inserting any allegation material to the case.” Was this change of the form of action from one at law to an action in equity the insertion of an allegation material to the case? We think not. The case as presented by the original complaint was one for the
There is also great force in the. suggestion made by the appellant that the complaint is too general and indefinite in its terms to enable the court to require a specific performance of the agreement, and that that vice also inheres in the contract itself. Just what work is required to be performed, and in what manner and when it is to be performed, are not specified either in the contract or the complaint as amended; and this, in part, grows out of the fact that defendant appears to have been at work in excavating at the time of and since the commencement of this action. How much the judgment entered upon the amended complaint requires the defendant to do is quite uncertain, and the complaint and the decree would furnish no real and accurate guide for the defendant in performing the work which by the decree he is commanded to do. Great accuracy and precision in averment and proof are required in an action for specific performance, which does not seem to have been adopted in this case. I am therefore of the opinion that the decree should be reversed, the referee discharged, and anew trial granted, costs to abide the event. All concur.