Bruns v. Brooklyn Citizen

The action is for libel, and the answer which raised the issues presented upon the first trial, which resulted in a disagreement of the jury, did not plead justification. Subsequent to the trial the defendant made a motion for leave to serve an amended answer setting up justification ; the court granted the motion, but imposed no terms as a condition. The plaintiff appeals from the order.

We think that the learned court at Special Term did not abuse its discretion in permitting the defendant to present the new issue, but terms should have been imposed. It is the uniform practice that such an amendment will be granted only upon payment of the costs of the action antecedent to the granting of the application. (Thilemann v. Mayor, 71 App. Div. 595; Lindblad v. Lynde, 81 id. 603 ; McEntyre v. Tucker, 40 id. 444; Bates v. Salt Springs National Bank, 43 id. 321.)

The order should be modified in this particular, and as modified affirmed, without costs of this appeal.

All concurred.

*317Order modified by inserting a provision that the defendant pay costs incurred at the time of the motion as a condition of serving an amended answer, and as so modified affirmed, without costs of this appeal.