Statement of the Case. quoted from. Indeed there was nothing to prevent the plaintiff from serving an amended complaint after the order of reference was made, and thereby present a non-referable cause. III. The amended complaint served after issue joined and the cause regularly noticed for trial destroyed the former issue, and the new issues are not covered by the order of reference. Ostrander v. Conkey, 20 Hun, 421; Clifton v. Brown, 27 Ib. 231; Kline v. Corey, 18 Ib. 524. The "without prejudice" clause contained in section 542 must be considered as having a limited meaning, and so considered does not take the case out of the principle of above decisions. Robertson v. Bennett, 52 How. 287; Burril v. Moore, 5 Duer, 654; Brannigan v. Palmer, 5 Week. Dig. 521. The case of Enos v. Thomas, 4 How. 289, will probably be cited against the appeal. That case only holds that the plaintiff could notice a motion for reference before the defendant's time to amend his answer had expired. It was a special term decision of another department made twenty years ago, and contains no argument nor citation of authority. Its broad language was not necessary to the determination of the question then before it. J. E. Ludden, attorney and of counsel, for respondent, argued :— I. The order of reference was properly granted, because it appeared upon the moving papers that the trial would require the examination of a long account, on the part of the plaintiff, and would not require the decision of any difficult questions of law. And the accounts to be examined are the immediate object of this suit, and are not collaterally involved; that is to say, as the rendition of the services and materials were averred by plaintiff, and denied by defendants, it is necessary that they should all be Statement of the Case. Code proved, in order to sustain plaintiff's claim. of Civil Procedure, § 1013; Kain v. Delano, 11 Abb. N. S. 29; Welsh v. Darragh, 52 N. Y. 590. II. Nor was it any answer to say, that defendants intended to amend their answer, and thereby, in the opinion of defendant's counsel, change the issues to be tried. § 542 Code Civil Procedure, Enos v. Thomas, 4 How. 290. III. The character of an action is determined by the complaint. The answer cannot change it. If the action is a referable one the answer cannot make it a non-referable one. Welsh v. Darragh, 52 N. Y. 590; Untermeyer et al. v. Bienhauer, 105 lb. 521; Camp v. Ingersoll et al., 86 lb. 433-436. IV. The amended answer does not in any way change the issues to be tried, and therefore the motion to vacate was properly denied. PER CURIAM. The moving papers upon which the order of reference was granted, and which included the pleadings, satisfactorily established that the trial of the issues would require the examination of a long account, containing 714 items, on the part of the plaintiff, that it would not require the decision of any difficult question of law, and that an account between the parties in the proper acceptation of the term was directly involved. It was no answer to the motion to say that the defendants intended to amend their answer, Enos v. Thomas, 4 How. 290. The foundation of the practice in the courts rests upon acts, and not upon mere intentions. The case, as it appeared upon the moving papers, was clearly referable, and consequently no error was committed in granting the order of reference. The amended answer which was subsequently served, in no way lessened the necessity of a reference. The incorporation of a counterclaim rather increased the necessity. On the motion to vacate Statement of the Case. the order of reference on the ground that the issues had been changed by an amendment to the answer, the burden of proof was on the defendants to establish that the answer as amended rendered a reference unnecessary. This they wholly failed to establish. The case presents only questions of practice and not of jurisdiction, and upon all the facts we cannot say that the several judges who made the orders. appealed from abused the discretion vested in them. The orders appealed from should be severally affirmed with costs and disbursements. ISABELLA WEINBORG, Respondent, v. THE NATIONAL STEAMSHIP COMPANY, LIMITED, AP PELLANT. Carrier of goods, proof of negligence of, the mere fact of non-delivery without any explanation is prima facie evidence of his own negligence-Exemption from liability for such negligence, the contract of carriage must in clear and explicit form embrace it-Married woman, baggage of what constitutes under a contract for the passage of herself and her children. Before SEDGWICK, Ch. J., FREEDMAN and INGRAHAM, JJ. Decided January 6, 1890. Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant's motion for a new trial. John Chetwood, for appellant. A. D. Pape, for respondent. BY THE COURT.-FREEDMAN, J.-Whether or not the missing goods in suit had been delivered to the defendant for transportation, was, upon evidence sufficient for that purpose, left to the jury as a ques Statement of the Case. tion of fact, with the instruction that the burden of establishing a delivery was upon the plaintiff. The verdict of the jury determined the fact in favor of the plaintiff. Upon the question of defendant's liability it appears that the plaintiff was a passenger on a steamship of the defendant which sailed from Liverpool to New York; that the missing goods were delivered by her to the steamship in a case or trunk as part of her baggage, and were not delivered to her by the ship on arrival at New York; and that her contract for passage was a special one which in terms exempted the company from liability for loss occasioned by the negligence of the company's servants, but which did not in terms nor by necessary implication exempt the company from liability for loss occurring through its own negligence. This left the company liable for its own negligence, for the authorities of this state are to the effect that, although a common carrier may contract for exemption from liability for loss occurring through his own negligence as well as that of his servants, (Steers v. Liverpool, N. Y. & Phil. S. S. Co., 57 N. Y. 1; Poucher v. N. Y. C. R. R. Co., 49 Ib. 263; Magnin v. Dinsmore, 56 Ib. 168;) the contract is not to be deemed to include his own negligence by any general words, nor unless it in clear and explicit form embraces such negligence. Westcott v. Fargo, 61 N. Y. 542; Ghormley v. Dinsmore, 51 N. Y. Super. Ct. 196, and 53 Ib. 36. The defendant gave no evidence showing a loss by the negligence of any of its servants, nor does the evidence given by and on behalf of the plaintiff justify any such inference. In fact the case, at the trial, resolved itself into one of non-delivery without any explanation. As this was of itself prima facie evidence of negligence in the defendant, (Canfield v. Balt. & Ohio R. R. Co. 93 N. Y. 532,) and the question of defendant's negligence was upon all Statement of the Case. the facts and circumstances left to the jury as a question of fact, with the instruction that the burden of establishing negligence in the defendant was upon the plaintiff, the defendant has no cause of complaint. The only remaining question relates to the amount of the verdict. The contract was for the passage of the plaintiff and her two children. Plaintiff's bill of particulars amounted to $452. At the close of the testimony on both sides the counsel for the defendant made several motions for reductions, on the ground that some of the items did not constitute baggage, and that some belonged to plaintiff's husband. These motions were denied, and exceptions were taken to some, but not all, of the denials. The exceptions which were taken, appear to be untenable for the reason that the several motions to which they relate were, in view of the facts, too broad. Moreover the trial judge finally disallowed numerous items, and then instructed the jury that the possible amount of plaintiff's recovery could not exceed $226, to which instruction no exception was taken. There is no exception anywhere to the allowance of the children's clothing, nor was any request made for any further instruction. The verdict of the jury did not exceed $226, and under all the circumstances no substantial reason appears for a disturbance of the verdict. Under the decision of Dexter v. The Syracuse, Binghampton & N. Y. R. R. Co., 42 N. Y. 326, baggage includes all articles designed for the personal use of the passenger and the members of his family and customarily carried by travellers as baggage, although they are not intended to be used and are not necessary for the use, comfort or convenience of the passenger on the journey. If there was any reason to doubt the statement of the plaintiff that, as between herself and her husband, the articles recovered for were hers, the |