Dunham v. Hastings Pavement Co.

I think the court below was justified in allowing the plaintiff to serve an amended- complaint. While the form of the second causé of action is changed from one .to recover under the contract to a cause of action to recover for a breach of the same contract* the basis. of' the action is Upon the contract, and tile liability of the defendant depends upon its obligation thereunder. It having been determined.that the right of the plaintiff to recover under the second cause of action' must, be based upon a breach bf the contract, by the defendant, it was proper for the court to allow ail amendment to. the complaint so as to present the question at issue. The court had *515power to make such an amendment whether, strictly speaking, a new cause of action was or was not alleged. We think that such an amendment, however, should only he allowed upon condition that the plaintiff should pay all the costs of the action up to the date of • the amendment; and the order appealed from should be modified, requiring the payment of such costs as a condition for allowing the plaintiff to serve the amended complaint.

The order appealed from should, therefore, be modified accord-, ingly, and as modified affirmed, without costs of this appeal. .

O’Brien, P. J., Patterson, Clarke and Houghton, JJ., .concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.