As the court is apparently of the opinion that the amendment allowed was unnecessary, it seems to me that the order appealed from should be reversed. If applications of this kind are to meet with favor, every time that a court or referee rules upon a question of evidence involving the pleadings, whether such ruling be right *532or wrong, the party ruled against will make an application to the court to have his pleadings amended in order to avoid the objection taken and will he entitled to have his motion granted. It seems to me that the establishment of such a rule would result in the transfer of the trial of a case from the tribunal before which it was pending to the part of the Special Term devoted to the hearing of motions.
The order should be reversed.
Order modified as directed in opinion, and, as modified, affirmed, without costs.