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Ross v. McCarthy

175 A.D. 231 Court Third Department, Decision date 1916-11-15 English

Delivered by Kellogg, P. J.:

Contents

Majority

p. 231
Milan H. Ross, as Administrator, etc., of William D. Wilder, Deceased, Respondent, v. Margaret McCarthy, Appellant.
Third Department,
November 15, 1916.

Headnote

Pleading — complaint — amendment — costs.
The court has power to' amend a summons and complaint so that the action may be by the plaintiff, personally, and not as administrator.
Where, upon a former appeal to the Appellate Division, the defendant obtained a reversal of a judgment in favor of the plaintiff, with costs to the defendant to abide the event, and it was necessary for the plaintiff in order to succeed in the second trial to amend his complaint, such amendment should only be allowed upon the plaintiff paying the defendant’s costs of the former appeal.
p. 232
Appeal by the defendant, Margaret McCarthy, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 8th day of June, 1916, amending the summons and complaint herein.
W. J. Saunders, for the appellant.
George H. Bowers, for the respondent.

The court had the power, on proper terms, to permit the amendment to the summons and complaint so that the action may be by the plaintiff personally and not as administrator. (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262 .) Upon a former appeal to the Appellate Division the defendant obtained a reversal of the judgment in favor of the plaintiff, with costs to the defendant to abide the event. ( 168 App. Div. 533 .). Upon the second trial, in order to succeed in the action, it was necessary for the plaintiff to amend his complaint. If the amendment had not been made apparently the defendant would have succeeded in the action, and would have recovered his costs in the Appellate Division. We conclude, therefore, that as a term of the amendment the plaintiff should have been required to pay the defendant’s costs of the former appeal in the Appellate Division.

The order amending the complaint is, therefore, modified accordingly, and as so modified affirmed, without costs.

Order modified by imposing as a term of the amendment that the plaintiff pay the defendant’s costs of the former ■ appeal in the Appellate Division, and as so modified unanimously affirmed, without costs.

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