Wardlaw v. Mayor of New York — 30 Abb.N. Cas. 129

Majority

p. 129

WARDLAW v. MAYOR, ETC. OF N. Y.

N. Y. Superior Court, Special Term ;

May, 1893.

Headnote

Amendment; terms of allowing.] Although the payment of plaintiff's costs and disbursements at the trial and General Term where he has been successful, together with the costs of motion, should be imposed as a condition of allowing defendant to amend his answer after the reversal of the judgment in plaintiff’s favor and the granting of a new trial with costs to abide the event by the court of appeals,—yet an extra allowance granted plaintiff on the former trial, which would increase such penalty to an exorbitant amount if included, should not be added thereto.

Motion to resettle an order allowing defendant to serve; an amended answer on the payment of costs.

p. 130

L. Lajlin Kellogg (Kellogg, Rose & Smith, attorneys), for the motion.

William H. Clark, opposed.

JOn April 6,-1893, an order was entered allowing defendants to serve an amended answer, on payment of the costs of Trial and General'Terms, and $10 costs of motion. The plaintiff had been successful .at the trial and at General Term, but the court of appeals •reversed the judgments in plaintiff’s favor and ordered a new trial, with costs to abide the event. Thereupon, defendants moved for leave to serve an amended answer. I granted the application on condition that defendants pay the costs of the Trial and General Terms, holding that in■asmuch as this amendment might possibly result in a ver•dict for defendants, in which event plaintiff would lose the -costs of the Trial and General Terms, in which she had .been successful, it was just that she should receive these -costs as a condition for granting the motion ; and I imposed also on defendants $10 as the costs of the motion (Ireland v. Metropolitan El. Ry. Co., 8 State Rep. 127). The plaintiff afterwards entered into a stipulation with' defendants that these costs should be regarded solely as a penalty which defendants must pay for the privilege of serving an amended answer, and that if the plaintiff is successful at the trial, she may tax the same costs again. The amount of the costs as taxed, including an extra allowance of $343.15, is $580.48, which, with the costs of the motion, amount to <§¡590.48. This sum the defendants regard as an excessive penalty to pay for leave to serve an amended answer. The plaintiff, on the other hand, contends that under the decision of Ireland v. Ry'. Co. {supra) she is entitled to receive that amount, to wit, all her costs, disbursements and allowance as taxed.

I cannot agree with this contention. The terms are entirely discretionary with the court, and should be regu

p. 131

lated according to the circumstances of the case. Section 723 of the Code, which governs applications of this character, provides that the court may grant such applications, ■“ and on such terms as it deems just.” I. do not think, under the circumstances, that it would be just to impose on defendants so heavy a penalty as $590.48 for permission to serve their amended answer. I am of the opinion that for the privilege of coming in and serving an amended answer the defendant should pay to the plaintiff the sum of $247.23, which is equal to the taxable costs and disbursements of the two terms at which the plaintiff was successful, together with $ro, the costs of this motion. This is the sum contemplated by the court when the motion was granted. It was not intended that the penalty should be made up by including therein a sum equal to the extra allowance.