Takouhi Muzglian Ensanian v. New York Central & Hudson River Railroad

The appellant contends that the costs should have been imposed as a condition of the amendment and that it was error to make them abide the event of the trial.

Under section 723 of the Code of Civil Procedure the court may, upon the trial or at any stage of the action, “in furtherance of justice and on such terms as it deems just,” amend the pleadings. The court upon the trial held that an amendment was necessary, and withdrew a juror, so that an application could be made at Special Term. It appears by the moving papers that the plaintiff is out of funds, almost penniless and practically destitute, there being no property or money of the estate of the intestate aside from the cause of action. If the *843court had permitted the amendment upon condition that she pay the costs, it would have been equivalent to denying the amendment, as the payment of costs was beyond her ability. In that case the amendment would not have been made on just terms. Considering the destitute condition of the estate and of the administratrix, the party to be benefited by the action, the terms imposed were just. The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.