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Takouhi Muzglian Ensanian v. New York Central & Hudson River Railroad

169 A.D. 842 Court Third Department, Decision date 1915-11-10 English

Delivered by Kellogg, J.:

Contents

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p. 842
Takouhi Muzglian Ensanian, as Administratrix, etc., of Hampartzoum Muzglian, Deceased, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
Third Department,
November 10, 1915.

Headnote

Practice — costs of amendment — inability of plaintiff to pay — costs to abide event.
Where a plaintiff is destitute and entirely without funds, the court, when granting costs to the defendant as a condition for allowing an amendment to the complaint, may, in its discretion, direct that payment shall abide the event of the action.
Appeal by the defendant, New York Central and Hudson River Railroad Company, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 12th day of April, 1915, as directs that certain taxable costs awarded to defendant shall be to abide the event of the trial of the action herein.
The order granted plaintiff leave to serve an amended complaint.
Visscher, Whalen & Austin [ William L. Visscher of counsel], for the appellant.
John F. Murray and William H. Murray, for the respondent.

The appellant contends that the costs should have been imposed as a condition of the amendment and that it was error to make them abide the event of the trial.

Under section 723 of the Code of Civil Procedure the court may, upon the trial or at any stage of the action, “in furtherance of justice and on such terms as it deems just,” amend the pleadings. The court upon the trial held that an amendment was necessary, and withdrew a juror, so that an application could be made at Special Term. It appears by the moving papers that the plaintiff is out of funds, almost penniless and practically destitute, there being no property or money of the estate of the intestate aside from the cause of action. If the

p. 843
court had permitted the amendment upon condition that she pay the costs, it would have been equivalent to denying the amendment, as the payment of costs was beyond her ability. In that case the amendment would not have been made on just terms. Considering the destitute condition of the estate and of the administratrix, the party to be benefited by the action, the terms imposed were just. The order should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.