People v. City of Brooklyn

This action was' begun in "July, 1894. The issues raised by the pleadings were tried February 1, 1895, and for some reason there resulted a mis-trial. In August, 1895, the defendant, The City of Brooklyn, obtained an order permitting it to serve an amended answer, which was served under the order in November, 1895. By this amended answer was raised, for the first time, the issue that Emily Colder was a necessary party to the action. After the interposition of this answer the plaintiff moved for leave to amend the summons and complaint by making said Colder a party defendant. This motion was granted without terms, and from the order granting the motion this appeal is taken.

It is plain that the order, so far as it granted the amendment, was proper. The defendant claimed that Colder was a necessary party and the plaintiff acceded to that claim by making the application. Under these circumstances it would have been unreasonable to have proceeded further in the case in the absence of Colder. It was proper to impose no terms upon the plaintiff as a condition for this amendment: The action had been at issue for a year before the defendant raised the question of the necessity of the presence of Colder by its amended answer. Its ability to then raise that issue was not a matter of right, but solely proceeded from the favor of the court in permitting it to serve an amended pleading. The order permitting such amended pleading should have reserved the right to the plaintiff to' amend without terms. As it did not, this privilege was rightly given by the order now appealed from.

*204The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements. .