Opinion
June 27, 1906.
Adelbert W. Boynton, for the appellant.
Seth S. Allen, for the respondent.
At the close of the plaintiff's proof the defendant's counsel moved to dismiss the complaint on the ground that the plaintiff had failed to prove her cause of action, whereupon plaintiff's counsel moved to amend her complaint to conform to the proof by inserting allegations to show how the undivided half of the premises owned by said Orrin Storrs, the brother of William, had descended to the parties to the action, in order to make it clear that the purpose of the action was to procure a partition of the entire estate instead of an undivided one-half thereof. Counsel for the defendant Amanda M. Storrs consented that the referee might pass upon the proposed amendment with the same force and effect that the court might at Special Term, without prejudice, however, to the objections and motions already made. The referee granted the amendment and it was thereupon stated in the record that the answer is deemed to be amended to put the allegations of the amended complaint in issue. The appellant's counsel now urges that the referee had no right to allow the amendment as it changed the cause of action and could only have been granted at Special Term. If that was so, in view of the appellant's consent that the referee might pass upon it, she has precluded herself from taking advantage of it here. But the amendment did not change the cause of action. The referee on the trial had the same power as the court to amend the pleadings to conform to the facts proved. (Code Civ. Proc. §§ 723, 1018.) The action after the amendment was for partition of the same property between the same parties, having the same interests as alleged in the original complaint. The amendment simply supplied an omission therein to show how the parties received the interests it was claimed they had, and it in no sense changed the cause of action.
The appellant further urges that as the deeds to her from her husband, Elbridge G. Storrs, put in evidence by the plaintiff were warranty deeds and conveyed on their face the entire estate in the premises, and as plaintiff proved no title in William Storrs and Orrin Storrs to the lands in question, the appellant was shown to be the owner of the entire estate and, therefore, that the plaintiff had not shown any title or possession in herself that would authorize her to maintain the suit. The action was evidently tried on the theory as alleged in the complaint, that William Storrs and Orrin Storrs were each the owners of an undivided one-half interest in the property at the time of their respective deaths, and that the appellant's husband had settled with the plaintiff for any interest she had in the premises. The record on this appeal is a very imperfect one and contains only portions of the judgment roll. It does not contain the appellant's answer. It is said in the respondent's brief that the allegation in the complaint that William Storrs was the owner in fee of an undivided one-half of the real property described and died intestate as to the same was in no wise denied in the answer. The brief of respondent's counsel also set out what he says are all the important allegations of the answer. These contain no denial of the interest of Orrin at the time of his death. These statements in respondent's brief were in no wise denied by the appellant on the oral argument and no reply brief has been furnished controverting them. It was the duty of the appellant to furnish the court on this appeal with a copy of the judgment roll including the pleadings (General Rules of Practice, rule 41), and he having failed to do so, and not having denied the statements of respondent's counsel as to the answer, we may assume, for the purpose of sustaining the judgment appealed from, that the respondent has correctly informed us what the answer contained. The parts of the complaint that are admitted by not being denied, together with the proofs, show a complete chain of title from William and Orrin Storrs to these parties, and their interests under the proofs have been correctly stated and found by the referee.
It is not to be assumed that the entry in the record that the answer is deemed to be amended to put the allegations of the amended complaint in issue means anything more than that the allegations added to the amended complaint are to be deemed controverted by the answer.
While the deeds from Elbridge G. Storrs to his wife, the defendant Amanda W. Storrs, purport to convey the entire title to the premises, yet the proofs clearly show that he owned only a five-sixths interest therein as tenant in common, and, therefore, he could not convey any greater estate or interest than he possessed. (Real Prop. Law [Laws of 1896, chap. 547], § 210.)
The interlocutory judgment should be affirmed, with costs.
Interlocutory judgment unanimously affirmed, with costs.