The defendant, in his origi nal answer, put in issue, first, the transfer of the note mentioned in the complaint by the payee to the plaintiff; and, secondly, averred that the payee was the owner of the note until its maturity ; and that while he was such owner, and before it was transferred to the plaintiff, the defendant paid it to the payee.
On the trial he applied to the referee to amend his answer, by setting up that the note was made by him for the accom*36modation. of the payee, and was taken up by the payee at maturity, and was subsequently delivered by the payee to the plaintiff, without consideration. The referee allowed this amendment, without costs.
I. The plaintiff insisted that the referee had not the power to allow the proposed amendment; that it changed the substance and nature of the defence, and was wholly inconsistent with the original answer. The objections were overruled, and the plaintiff excepted.
We think the objections were properly overruled. Section 173 of the Code provides that the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading by correcting a mistake in any respect, or by inserting other allegations material to the case.
This language would seem to remove all restrictions upon the power of amendment of pleadings upon the trial, in cases in which it is made to appear to the court that the amendment would be in furtherance of justice. This was the construction given to this section by Harris, J., in the case of Beardsley a. Stover (7 How. Pr., 294). In Harrington a. Slade (22 Barb., 161), the general term in this district held substantially the same doctrine. Paige, J., says that, “ Under the old chancery practice, amendments of answers, and leave to put in supplemental answers, were granted with great caution; that the defendant was not allowed to put in a supplemental answer contradicting the statements in the first answer; but that amendments were now granted with more liberality, and that under the provisions of the Revised Statutes and the Code, it is the duty of the court to allow amendments in furtherance of justice, upon such terms as shall be just and proper.”
The cases of Catlin a. Hansen (1 Duer, 309), and Fagan a. Davison (2 Ib., 153), so far as they conflict with this construction of section 173 of the Code, are not, in our opinion, correct.
The Court of Appeals, in the case of the Cayuga County Bank a. Warden (6 S. Y, 19, 27), held that an amendment without costs, was an amendment “upon such terms as may be-proper within the meaning of the section referred to.”
The terms of an amendment are by this provision clearly within the discretion of the court, and the exercise of that discretion is not the subject of review upon exceptions or appeal.
*37Section 272 of the Code gives a referee the same power to allow amendments to any pleading as the court upon a trial, upon the same terms and with the like effect.
II. There is no force in the plaintiff’s objection to the answer of Isaac Bush to the last direct interrogatory. That interrogatory asked the witness, “ if he knew or could state any other matter or thing material to the subject of his examination, or which might tend to the benefit of the plaintiff.” The answer was responsive to the first branch of the question, and was material to the issue tendered by the amended answer, which alleged that the note was delivered by the payee to the plaintiff without consideration, and also to the issue tendered by the first answer, that plaintiff was not the real owner and holder of the note.
HI. The referee properly excluded the evidence offered of the declarations of Isaac Bush, that he had received a consideration for the note from the plaintiff. The testimony was offered for the purpose of contradicting the testimony of Isaac Bush, and to affect his credibility; and the objection to it was, “that the attention of the witness had not been called to the conversation,” and was sustained.
It is settled by the case of Brown a. Kimball (25 Wend., 259), that the declarations of witnesses whose testimony has been taken on commission, made subsequent to the execution of the commission, contradicting or invalidating their testimony, cannot be given in evidence; and that such evidence is always inadmissible, unless the witnesses have been examined upon the point, and an opportunity offered them for explanation or exculpation, and that the rule applies as well where the testimony is taken under a commission as otherwise. The same doctrine was held in Stacy a. Graham (14 N. Y, 492).
The referee also properly allowed the defendant to explain the inconsistency of his testimony with his first answer. The plaintiff had introduced the first answer in evidence to impeach the defendant’s testimony. Clearly, the defendant’s mouth could not be closed, and he thereby prevented from showing that it was put in through forgetfulness of the facts and by mistake, and not corruptly.
The other questions in the case were purely questions of fact for the referee, upon a conflict of evidence. His finding is conclusive.
*38IV. There was no sufficient evidence upon which the referee could hold, as matter of law, that the defendant was estopped from setting up the defence that the note was made for the accommodation of Ms brother, and was taken up by him at maturity, and afterwards transferred to the plaintiff. The only evidence upon which it could be claimed that the estoppel arose, was the answer of the defendant to the plaintiff’s demand of payment of the note made on the 10th or 15th of November, 1857, that he “ had no money.” But clearly this answer was not made with a view of influencing the plaintiff to purchase the note; on the contrary, the plaintiff testified that he then had the note in his possession, and showed it to the defendant, and told him that he (plaintiff) had a note against Mm.
It is one of the essential elements of an estoppel in pais, that the declaration out of which it is claimed to arise, should be made with a view to induce the party to whom it is made to act upon it.
The judgment should be affirmed.