Opinion of the Court, per GROVER, J.

APPEAL from order of the General Term of the Supreme Court in the second judicial department, affirming an order striking out the amended complaint.

The original complaint was to compel the determination of conflicting claims to real property. Within the time prescribed by section 172 of the Code, plaintiff served an amended complaint which set forth a cause of action in ejectment. This was stricken out on motion, upon the ground that the cause of action embraced therein was a new and different one from that set forth in the original.

Ed. J. Maxwell, for the appellant. The amendment was proper under section 172. (Beardsley v. Stover, 7 How., 294; T. and B. R. R. Co. v. Tibbets, 11 id., 168; Bedford v. Terhune, 30 N. Y., 454; Robinson v. Wheeler, 25 id., 232; Byxton v. Wood, 24 id., 607; 37 Barb., 270; Code R., N. S., 388; 1 Abb., 185; 13 How., 466.)

P. V. R. Stanton, for the respondent. A plaintiff cannot amend a complaint by substituting a new and different cause of action. (Hollister v. Livingston, 9 How. Pr., 140; Dovs v. Green, 3 id., 377; Woodruff v. Dickie, 5 Robertson's R., 619; Field v. Morse, 8 How. Pr., 47; McGrath v. Van Wyck, 2 Sandf., 651; Nosser v. Corwin, 36 How. Pr., 540.) What the court would not allow, cannot be done. as of course. (Spaulding v. Spaulding, 3 How., 300.)

GROVER, J.

The order is appealable to this court. (Code, § 11, subd. 4.) Section 449 of the Code provides that an action may be brought to compel the determination of claims to real property, pursuant to the provisions of the Revised Statutes, and that the same may be prosecuted without regard to the forms of the proceedings as prescribed by these statutes. It follows that the same rights of amendment exist in actions brought for this purpose as in other actions authorized by the Code. The question arising upon this appeal is whether, under section 172 of the Code, a plaintiff is authorized to amend his

Opinion of the Court, per GROVER, J.

complaint by setting forth a new cause of action, and if so, whether the right is restricted to setting forth one of the same class as that contained in the original complaint. That section provides that any pleading may once be amended by the party, of course, without costs, and without prejudice to the proceedings already had within the time therein specified. Although the construction of this section has been much discussed, it has not been determined by this court in respect to the questions involved in the present case, and the decisions by the other courts are somewhat conflicting. In some cases it has been held that the true construction was that this section gave only the right to amend and perfect what was previously set out in an imperfect manner. That setting up a new cause of action, or new defence, was in no proper sense an amendment, but substituting a new pleading. Hollister v. Livingston (9 How. Pr. Rep., 140); Field v. Morse (8 id., 47); Dows v. Green (3 id., 377) are cases of this class. In other cases (Mason v. Whitely, 4 Duer, 611; Prindle v. Aldrich, 13 How. Pr., 466; Troy and Boston R. R. Co. v. Tibbits, 11 id., 168, and others), it has been held that a new cause of action or defence might be set up. I think the construction adopted in the former cases too strict, and subversive of the true meaning of the section in this respect. That gives a party power to amend any pleading once without imposing any restriction upon it. The term pleading includes all the pleadings of both parties. The complaint is the statement of the plaintiff's cause or causes of action. It is this statement or complaint that may be amended and perfected by the party so as to enable him to present his entire case upon trial. It is not confined to an amendment of such matter as has been defectively stated in the original complaint. The same remarks apply to the answer. This is a statement of the defence and of any counter claim or claims. It is this statement that may be amended by the party so as to enable him to avail himself of all his defences upon trial. It follows that new causes of action may be included in the complaint and those in the original left out, and new defences or coun

Opinion of the Court, per GROVER, J.

That this was the inten

ter-claims embraced in the answer. tion of the Legislature clearly appears from the last clause of section 173, by which the power of the court to grant amendments upon the trial, by conforming the pleading to the facts proved, is restricted to such amendments as do not change substantially the claim or defence. The insertion of the restriction shows that the Legislature, in its absence, understood that such change might be made under the power conferred. There is no such restriction in section 172, nor upon the general power conferred upon the court to allow amendments conferred by section 173. Were the power to amend upon trial unrestricted, parties might be compelled to litigate matters of which they had no notice, and for which they were unprepared, and injustice thereby done, but there is no such danger where the amendment is made before trial, so that the adverse party may come fully prepared to meet. It is insisted by the counsel for the respondent that although under section 172, a new cause of action may be set forth in the complaint, yet that this can only be done when such new cause belongs to the same class as those contained in the original complaint. Section 167 of the Code declares what causes of action may be joined, and creates for this purpose seven classes, and declares that all causes of action belonging to any one of these may be joined. Section 144, Code, provides that where causes of action are improperly joined the defendant may demur to the complaint. It follows that a plaintiff cannot in an amended complaint add a cause of action belonging to a different class from those in the original, retaining the latter. This would render the amended complaint demurable under section 144, as the amended complaint, when properly served, is regarded as the complaint in the action, the same as if the only one that had been served. This explains the expressions in the opinions relied upon by the counsel for the respondent, that the new cause of action added must be of the same class. But when the causes of action in the original complaint are abandoned this reason no longer applies, it being requisite only that the causes of action SICKELS-VOL. IV. 11

Statement of case.

in the amended complaint should all belong to the same class. There is no other reason for restricting the causes that may be added. The causes of action in the amended complaint must, like those in the original, be warranted by the summons. If that demands a specific sum of money, they must all be of the class where such a summons was proper, otherwise they may be stricken out upon motion. My conclusion is, that when the right to amend the pleading is given by section 172, the party may make the same as advised, the same as he could the original. This leads to a reversal of the orders of the General and Special Term, and to a denial of the motion to strike out the amended complaint.

All concur.

Ordered accordingly.

MATILDA SCHLOEMER, Respondent, v. OTTO SCHLOEMER,

Appellant.

An order in an action for divorce, requiring the husband to pay a sum necessary to enable the wife to carry on the suit, to be used for a specific purpose in the suit, instead of for the purposes of the suit generally, is proper.

(Argued March 26, 1872; decided April 2d, 1872.)

APPEAL from order of the General Term of the Supreme Court in the second judicial department, affirming an order of the Special Term, Kings county, directing the payment by defendant of $250 for referee's fees.

The action was brought for absolute divorce. The defence was, no marriage.

The action was referred to a referee to hear and to report the facts, with his opinion thereon. The referee made a report, with his opinion, in favor of the plaintiff, and thereupon the plaintiff made a motion that the court fix temporary alimony, and order the defendant to pay the plaintiff's attor. ney the sum of $250 for referee's fees, which motion was

Opinion per CURIAM.

granted. Defendant appealed from this part of the order directing the payment of the referee's fees.

John H. Bergen for appellant. The fees of a referee are fixed by statute at three dollars a day, and the only way the amount of such fees can be fixed and ascertained is by taxation. (Code, § 313; Shulte v. Whitney, 17 How., 471.) The disbursements, including referee's fees, are a part of the taxable costs of an action. (Pent v. Warth, 1 Bosw., 653; Belding v. Conklin, 4 How., 196'; Wheeler v. Westgate, 4 id., 269; Tall v. Thomas, 15 id., 315.) The order made was not authorized, as the statute fixes the fees of the referee, and an arbitrary amount cannot be allowed, only the necessary expenses. (Mix v. Mix, 1 J. Ch., 110; Denton v. Denton, id., 364; Worth v. Worth, 1 Barb. Ch., 241; Jones v. Jones, 2 id., 146 Williams v. Williams, 3 id., 628; Kendall v. Kendall, 1 id., 610.)

J. L. Bishop for respondent. The order is discretionary and not appealable. (3 R. S., 5th ed., 239; Forrest v. Forrest, 25 N. Y., 518.)

Per CURIAM. This was an action for an absolute divorce, dissolving the marriage. In that case the court may require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency, and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered or in the power of the court, or in the hands of a receiver. (2 R. S., 148, § 58.)

There is no doubt but that this suit is still pending. There is no doubt, from the papers, but that the sum ordered to be paid was necessary to enable the wife to carry on the suit. Had the court ordered the defendant to pay to the plaintiff the sum of $250, generally, as being so much necessary to enable her so to do, the order would have been correct. It does not make it incorrect, that the order is for that sum for