Howard v. Moller

The city court at special term allowed an amendment of the complaint on payment by plaintiff of $30 costs, and upon appeal the general term of that court imposed as terms of amendment the payment of all costs to date. This appeal is argued upon the assumption that the general term held that it had no discretion as to terms of amendment, and the argument is based upon the opinion of the court as follows: “We think the case of Walton v. Mather, 10 Misc. Rep. 216, 31 N. Y. Supp. 111, is decisive upon the question of terms, and that the order appealed from should be reversed, with costs, and amendment allowed upon payment of all costs to date.” ■ Nothing, however, contained in the order appealed from indicates that the court did not exercise the discretion conferred by the Code (section 539), which permits amendments of pleadings in the discretion of the court upon such terms as it deems just; and, if we are permitted to search the opinion of the court for error upon which to re*53verse, we nevertheless are unable to say that the phrase used by the general term fairly implies a surrender of discretion. The appellant is quarreling with a mere mode of expression, which, after all, does not necessarily bear the construction he contends for. The expression, “We think a certain case decisive upon the question of terms,” simply states an opinion that upon the same state of facts the decision as to the propriety of terms should be the same, which is a very fair exercise of discretion by the court in disposing of the case, as tending to the greater certainty of practice, and consequent safety of litigants. The order is affirmed, with costs and disbursements. All concur.