People v. City of Brooklyn — 6 A.D. 202

Majority

p. 202

The People of the State of New York, Respondent, v. The City of Brooklyn, Appellant; Samuel F. Cowdrey, Respondent.

Headnote

Amendment hy bringing in another defendant — when no terms will he imposed.

After there had been a, mistrial of the issues in an action, and more than a year after the action was begun, the defendant, the city of Brooklyn, obtained leave to serve an amended answer in which it alleged that one Emily Golder was a necessary party defendant. Subsequently, a motion made by the plaintiff to amend the summons and complaint by making. Emily Golder a party was granted, without costs.

Held, that the amendment of the summons and complaint was proper, as both parties agreed that Emily Golder was a necessary party;

That the defendant was not entitled to costs of the motion for leave to make the amendment, as it was only as a matter of favor allowed to amend its answer, and thus to raise the objection of Emily Golden not being a party .; that the better practice would have been to have provided in the order which permitted the defendant to serve an amended answer, that the plaintiff might amend the summons and complaint without the payment of costs.

p. 203

Appeal by the defendant, The City of Brooklyn, 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 1st day of April, 1896, granting the plaintiff’s motion to amend the summons and complaint by bringing in one Emily Colder as a party defendant in the action.

Ira Leo Bamberger and Joseph A. Burr, Corporation Counsel, for the appellant.

J. Warren Lawton, for the plaintiff, respondent.

This action was' begun in "July, 1894. The issues raised by the pleadings were tried February 1, 1895, and for some reason there resulted a mis-trial. In August, 1895, the defendant, The City of Brooklyn, obtained an order permitting it to serve an amended answer, which was served under the order in November, 1895. By this amended answer was raised, for the first time, the issue that Emily Colder was a necessary party to the action. After the interposition of this answer the plaintiff moved for leave to amend the summons and complaint by making said Colder a party defendant. This motion was granted without terms, and from the order granting the motion this appeal is taken.

It is plain that the order, so far as it granted the amendment, was proper. The defendant claimed that Colder was a necessary party and the plaintiff acceded to that claim by making the application. Under these circumstances it would have been unreasonable to have proceeded further in the case in the absence of Colder. It was proper to impose no terms upon the plaintiff as a condition for this amendment: The action had been at issue for a year before the defendant raised the question of the necessity of the presence of Colder by its amended answer. Its ability to then raise that issue was not a matter of right, but solely proceeded from the favor of the court in permitting it to serve an amended pleading. The order permitting such amended pleading should have reserved the right to the plaintiff to' amend without terms. As it did not, this privilege was rightly given by the order now appealed from.

p. 204

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements. .