Majority
p. 410Lizzie Woolsey, Respondent, v. Brooklyn Heights Railroad Company, Appellant. Second Department, December 2, 1908.
Headnote
Pleading — amendment — terms.Where the ground of a reversal is such that recovery cannot be had on the original allegation of negligence, an amendment setting up a new allegation of negligence should be conditioned on the payment of all costs after service of the answer.
Appeal by the defendant, the Brooklyn Heights Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of May, 1908, granting the plaintiff’s motion for leave to serve an amended complaint.
Francis R. Stoddard, Jr. [George D. Yeomans with him on the brief], for the appellant.
Adolph Ruger, for the respondent.
A judgment for the plaintiff being reversed, she then moved for leave to amend her complaint by a new allegation of negligence, as the ground of reversal was such that recovery could not be had on the original allegation of negligence. The motion was granted on payment of $30. The terms should" have been payment of all costs after service of the answer (McEntyre v. Tucker, 40 App. Div. 444 ; Rosenberg v. Feiering, 124 id. 522 ).
The order must be modified accordingly.
Jenks, Hooker, Rich and Miller, JJ., concurred.
Order modified in accordance with opinion and as so modified affirmed, without costs.
Cases cited
- McEntyre v. Tucker 40 App. Div. 444 p. 410