Rocker v. Wildfoerster

Cullen, J

This is an appeal from a judgment entered upon the report •of a referee. The action is to recover a balance of contract price and for extra. work in building a house. The case presents merely a question of fact arising out of disputes as to the several items of work. Certainly there is no .such preponderance of evidence as to any item as to require or justify us in reversing the findings of the referee. It is claimed that the referee erred in permitting the plaintiffs to amend their complaint by adding an additional item of extra work. The motion to amend was made at the close of the plaintiffs’ case. Decision thereon was reserved, and the motion granted only at the final decision of the court. The referee doubtless should have disposed of the application before the defendant entered upon her defense. This practice of reserving decisions on such applications or questions of evidence till the final decision is not to be-commended. But no harm was done in this case. The defendant adduced her evidence as to this additional item, and the case showed that the plaintiffs were clearly entitled to it. The judgment appealed from should be affirmed, with costs. All concur.