Opinion
May 6, 1908.
Walter E. Ward, for the appellant.
A.D. Lent and Andrew Wright Lent, for the respondents.
The referee's report contained the necessary findings upon which to base the judgment asked. Judgment was refused apparently upon the ground that the referee erroneously received evidence over defendants' objection and exception. The complaint alleged the execution of the bond and mortgage and default, and asked a sale of the property for the payment of the mortgage debt and for general relief. It alleged that Betsy Ann Gibbons, the mortgagee, died in March, 1893, leaving George Holly her only heir at law and next of kin and who became the owner of said mortgage by inheritance, and that the said George Holly died leaving a last will and testament, duly admitted to probate, by which he bequeathed said mortgage to Sally M. Holly, who was named executrix of said will, and that she assigned the mortgage to the plaintiff. Upon the trial objection was raised that no assignment of the bond or title to the bond was alleged, and that the plaintiff had no title, as the said George Holly could not transfer title to said mortgage.
The action was commenced in December, 1906, and interest was unpaid from April 1, 1906. It was proved under like objection and exception that letters of administration were duly issued to George Holly upon Betsy Ann Gibbons' estate March 27, 1893. The allegation that George Holly was the only next of kin and became the owner of the mortgage by inheritance, I think is a sufficient allegation of title in him. The word "inheritance" more properly applies to a succession to the title to real estate by the death of the former holder, but in this place in the complaint it could have but one meaning, and can only be understood as alleging that upon the death of the mortgagee he succeeded to this mortgage as her only next of kin; in order to gain full title to it he must bear that relation to her, and the personal representative of the estate must assent to, or acquiesce in, his taking this particular property. I think, therefore, the proof of the letters of administration was properly received. It is true the bond is the principal obligation and the mortgage would pass with it, but I think this complaint, alleging that he acquired the title to the mortgage in this way, is only consistent with the idea that he acquired the bond and mortgage.
The reference was to hear, try and determine. The referee, therefore, had the same power as the Special Term, and it cannot review and reverse or set aside his decision. (Code Civ. Proc. §§ 1018, 1228; Albany Brass Iron Co. v. Hoffman, 30 App. Div. 76. ) An application to the Special Term was necessary to make the formal parts of the judgment and to appoint a referee, but it could not review or disregard the decision of the referee. Such review could only be had by an appeal from the judgment to the Appellate Division.
We have seen that it was unnecessary to amend the complaint. If the trial court had received evidence over the defendants' objection and exception which was not warranted by the complaint, the error could not be cured after decision by an amendment to the complaint. The motion to amend the complaint was, therefore, properly denied.
The order denying the plaintiff's motion for a judgment should be reversed and the matter remitted to the Special Term for judgment. The order denying the motion to amend the complaint should be affirmed. No costs should be allowed.
All concurred.
Order denying motion for judgment reversed and the matter remitted to Special Term for judgment. Order denying motion to amend complaint affirmed, without costs.