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Smith v. Luckenbach

158 A.D. 485 Court Second Department, Decision date 1913-10-03 English

Delivered by Rich, J. :

Contents

Majority

p. 485
Mary Smith, as Administratrix, etc., of Joseph Smith, Deceased, Appellant, v. Edgar F. Luckenbach and Others, Respondents.
Second Department,
October 3, 1913.

Headnote

Pleading — withdrawal of juror in order to apply for amendment of answer — condition — costs.
A trial court on granting leave to a defendant to withdraw a juror in order to apply to the Special Term for leave to amend an answer alleging a new defense cannot determine the amount of costs which should be awarded by the Special Term. Under such circumstances leave to amend should only be granted upon payment of full costs. The above rules hold, although it is provided that the plaintiff may read upon any subsequent trial evidence already presented where such right is also granted to the defendant.
Appeal by the plaintiff, Mary Smith, as administratrix, etc., from part of an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the Tth day of April, 1913, and also from an order entered in said clerk’s office on the 20th day of May, 1913, denying the plaintiff’s motion to resettle the first mentioned order.
Alfred C. Cowan, for the appellant.
William L. Obrion [Amos H. Stephens with him on the brief], for the respondents.

Upon the trial of this action at a Trial Term, and after all of the evidence of the plaintiff had been received, the defendants’ motion for leave to withdraw a juror for the purpose of permitting them to apply to the Special Term for leave to amend their answer by alleging a new defense was granted “upon condition that they [defendants] pay to the plaintiff Thirty Dollars, trial fee, and the witness fees of the plaintiff on this trial, and upon the further condition that the evidence taken upon this and all the previous trials herein may be read in evidence upon any subsequent trial by either party, without

p. 486
calling the witnesses, and with the same force and effect as if the witnesses were actually called and testified; and it is further Ordered that these terms be inclusive for leave to amend the answer.”

This appeal is from the latter clause of the order, and also from an order denying plaintiff’s motion to resettle this order. I think the learned trial court exceeded his power when he undertook to fix the amount of costs that should be awarded by the Special Term. But even if the learned trial court possessed the power, the order would have to be modified. The rule frequently enforced in this court is that upon the facts presented leave to amend should only be granted upon payment of full costs. (Palazzo v. Degnon-McLean Contracting Co., 115 App. Div. 172 ; Woolsey v. Brooklyn Heights R. R. Co., 129 id. 410; Audley v. Townsend, 131 id. 79; Carpenter v. Atlas Improvement Co., 132 id. 112.)

The appellant argues that this case is not within the rule cited, for the reason' that the order permitted the plaintiff to read on any subsequent trial any testimony taken on former trials. The answer to this is that that right is not limited to the plaintiff but is also' secured to the defendants.

That part of the order of April seventh from which the appeal is taken must be reversed, with ten dollars costs and disbursements, and the order modified by striking therefrom the words “ Ordered that these terms be inclusive for leave to amend the answer.” The original order having been modified, the appeal from the order of May 20, 1913, should be dismissed, without costs.

Jenks, P. J., Cabe, Stapleton and Putnam, JJ., concurred.

That part of the order of April seventh from which the appeal is taken is reversed, with ten dollars costs and disbursements, and the order modified by striking therefrom the words “ Ordered that these terms be inclusive for leave to amend the answer.” The original order having been modified, the appeal from the order of May 20, 1913, is dismissed, without costs.

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