Garvey agt. Dung. evidence it contained tending to establish his cause of action. As we find no error in the rulings made at the trial, the judgment will be affirmed. MONELL and McCUNN, Justices, concurred. ANDREW J. GARVEY, appellant agt. ALBERT DUNG, respond ent. A master painter is not liable for injuries caused by his workmen willfully bespattering the walls of the room. The remedy for willful injuries would be against the workmen. General Term, February, 1866. Before DALY, BRADY and CARDOzo, Judges. APPEAL from judgment at special term. AUBREY C. WILSON, for appellant. WILLIAM H. DUSENBURY, for respondent. By the court, CARDOZO, J. The plaintiff agreed to cal cimine four ceilings for the defendant for the price of $30, and fix some ornaments for $12.50, making in all $42.50. As to the ornaments, the defendant conceded there was no objection, but although the proof is that the plaintiff had done two-thirds of the work which he contracted to do when he was discharged by the defendant, he has not only not been paid anything, but the justice has given judgment for $80 in favor of the defendant, on account of damages alleged to have been done by the plaintiff's workmen to the side walls of the rooms they were calcimining. The testimony was conflicting as to whether the plaintiff was by the terms of the agreement to protect the walls while doing the work, and the proof is that when such is Schermerhorn agt. Wood. not the agreement, extra charge is made for covering, and thus protecting the walls. The proof was in other respects quite conflicting, and perhaps if there were nothing else in the case, although I am not satisfied that the findings of the justice are correct, it would not be proper for us to interfere. But it is sworn on the part of the plaintiff, and not denied by the defendant, that the ground which the defendant assumed, and the cause of his complaint was that the plaintiff's workmen "willfully spattered" the paper; he said, "the men spattered the wall willfully." It does not require authority to show that if this be true, the defendant's claim for redress is against the workmen who thus willfully injured him. The plaintiff would be liable for the negligent acts of the workmen he employed, but not for their willful ones, where there is no proof that he authorized the willful injuries. The plaintiff has done a large part of his work, some of which is not even objected to, and yet he is not only deprived of any compensation, but made liable for $80 damages for willful wrongs of his employees. This cannot be sustained. The judgment should be reversed. The terms upon which an amendment of a pleading is granted are in the discretion of the court, unless they violate some absolute right of a party, and, except in such case, are not appealable.. General Term, February, 1866. Before DALY, BRADY and CARDOZO, Judges. By the court, CARDOZO, J. I think the order made by Judge DALY, and the terms which he imposed, rested in his Schermerhorn agt. Wood. discretion, and that, therefore, no appeal lies. Even after the amendment, the cause was referable in its nature, and when that is so, the question of terms in all respects, which, of course, includes whether the court should make it a condition of allowing the amendment that the order of reference be discharged, is addressed exclusively to the discretion of the judge to whom the application for the amendment is made. It is only when a party is deprived of that to which he has a strict legal right, that an order allowing an amendment is reviewable. In this case, the, defendant has not a strict, legal, absolute right, either to costs of the action since the first answer, or to a jury trial. The cases of Allaben agt. Wakeman (10 Abb. P. R. p. 162), and Union Bank agt. Mott (19 How. P. R. p. 267), are not inconsistent with these views. In each of those cases the defendant was permitted to add a new and distinct cause off action to the complaint without being required to serve a copy of the amended pleading on the defendant, and with out allowing him twenty days to answer. The court in each case held that the right to be served with a copy of the amended complaint, and to answer it in twenty days, was a statutory one, of which the defendants could not be deprived, and as the orders of the special term did deprive them of that right, they were held to be appealable. But in the present instance, the plaintiff has not been deprived of any statutory right, or of anything to which he has an absolute legal claim. If the plaintiff was entitled by statute to all the costs of the action, or if after the amend ment the action would not have been referable in its nature, then the cases relied on by the appellant would have been analogous. But whether all the costs or only part, or none should be allowed, and whether the case presented such difficult questions of law or fact as made it improper to refer it, and whether the issue of payment should first be tried by a jury, and if found adversely to the defendant, a reference then ordered, were all mere questions of prac People agt. Tarbox. tice, which were addressed to the discretion of the learned judge below, and whose action upon them is not reviewable. Appeal dismissed. with costs. THE PEOPLE OF THE STATE OF NEW YORK, plaintiffs in error agt. LEVI B. TARBOX, defendant in error Where a county court of sessions, after a trial and conviction of the defendant upon an indictment, make an order in arrest of judgment and discharge the defendant, the decision of the court and the proceedings therein, cannot be reviewed by writ of error, brought by the district attorney in behalf of the people. The act of 1852 only authorizes the district attorney to sue out writs of error in criminal cases to review judgments rendered in favor of defendants upon indictments. An order in arrest of judgment is not a judgment of the court, but an order merely. In analogy to civil cases, it cannot be pleaded in bar to another · prosecution for the same matter, because there is no judgment susceptible of review. Broome General Term. Argued November Term, 1865. Decided January Term, 1866. Before PARKER, MASON and BALCOM, Justices. TARBOX was tried upon an indictment for an assault and battery on one Yager, in the court of sessions of Otsego county, and was found guilty by the jury in August, 1865. He made a motion in that court in arrest of judgment, on the following grounds: 1. That he had never been arraigned upon the indictment on which he was convicted. 2. That he had not been required to plead to the indictment. 3. That he had not plead to the indictment or demanded & trial thereon. 4. That no issue had been joined upon the indictment. 5. That he had been tried and convicted upon the indictment without any issue having been joined thereon. People agt. Tarbox. The indictment was found in the Otsego oyer and ter miner, which court made an order sending it to the court of sessions of Otsego county for trial. Tarbox gave bail before a justice of the peace for his appearance at the term of the court of sessions at which he was tried, to answer to an indictment against him for assault and battery. And during that term of the court of sessions, before he was tried, he requested the district attorney two or three times to bring on his trial, and was ready for trial. Tarbox was in the court of sessions with counsel when his trial was moved upon the indictment, and expressed himself ready for trial, and a jury was empaneled for his trial without> any objection from him or his counsel. After the people rested he opened his defence in person to the jury, and called witnesses in his own behalf, who were duly sworn and gave evidence. It was immediately after the jury found Tarbox guilty, that he made the above mentioned motion in arrest of judgment. The district attorney admitted on the argument of the motion that Tarbox had: not been arraigned on the indictment, and had not plead thereto, unless the facts above stated amounted to an arraignment and plea. The court of sessions granted the motion in arrest of judgment, and discharged Tarbox; to which ruling and decision the district attorney excepted. The court of sessions settled a bill of exceptions, which was signed by the judges of that court, and filed with the clerk thereof; which bill contained the foregoing facts and the indictment, and showed when and where, and by what court the indictment was found, and all the proceedings thereon. The district attorney sued out a writ of error to the said court of sessions, which was allowed by a justice of this court, which writ and bill of exceptions were sent to this court under the hand and seal of the clerk of the said court of sessions. The district attorney brought on the argument of the case at the general term of this court upon |