Alexander Lumber Co. v. Abrahams

This is an appeal from an orderpermitting defendant to serve an amended answer herein upon payment of $20, and the disbursements taxed on| the appeal in this action.” ” • ' ■ The motion to amend the answer was made after the trial of the' action, resulting in a dismissal of the complaint, and after an appeal by the plaintiff to the General Term from the judgment entered on such dismissal, resulting in a reversal of the judgment, and granting a new trial, with costs to the appellant to abide the event. Alexander Lumber Co. v Abrahams, 19 Misc. Rep. 425.

*675In Walton v. Mather, 10 Misc. Rep. 216, the General Term of this court held that “ where the action has been once tried and the judgment reversed at the "instance of the defendant, with costs to abide the event, the plaintiff cannot be permitted to amend the complaint except upon payment of all the costs to date.”

In Ireland v. Metropolitan Elevated Railway Co., 8 N. Y. St. Repr. 127, the General Term of the Superior Court held, that “ where an action had been once tried and the judgment entered in favor of plaintiff, which was reversed on appeal to the General Term, with costs to the appellant to abide the event and a new trial ordered, at which new trial the defendant objected to the sufficiency of the complaint, and plaintiff Was allowed to amend on payment of $20 . costs, held, that the plaintiff should have been ordered to pay the costs awarded to the appellant on the appeal, and $10 costs of the motion as the terms on which the amendment would be allowed.”

From the above decisions we drew distinctions between the cases, where judgment was reversed with costs to abide the event, which means to either one of the parties who are successful, and with costs to the appellant to abide the event.

We think the judge did not abuse his discretion in allowing the amendment herein, but should have allowed the same on payment of the costs awarded to the appellant on the appeal.

It may be, that the amendment allowed herein will result in a verdict in favor of the defendant, in which event the plaintiff-appellant will lose the costs of an appeal in which he was successful.

We, therefore, amend the order appealed from herein, by striking out the words “ $20, and the disbursements taxed on the appeal in this action,” and substitute in the place thereof the words, “ The costs awarded to the appellant on the appeal and $10, costs of the motion,” and as so modified, the order appealed from is affirmed, without costs.

We have looked at Whitehead Brothers’ Co. v. Smack, 20 Misc. Rep. 229, but in that case the motion to amend the "complaint was made before trial. It is, therefore, not agreeable to the facts in this.

Van Wtok, Ch. J., concurs.

Order affirmed, without costs.