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McGrane v. Mayor of New York

19 How. Pr. 144 Court N.Y.C.P. Decision date 1860-05-29 English

Delivered by Brady, Judge.

Contents

Majority

p. 144
NEW YORK COMMON PLEAS.
McGrane agt. The Mayor, &c., of New York.

Headnote

A plaintiff, having obtained judgment at circuit, and the judgment being reversed at general term and a new trial ordered, the costs to abide the event, on the ground that the complaint did not contain an allegation of a fact essential to be proved in order to entitle him to recover,
Held, on motion, that he be allowed to amend his complaint for the purposes of the new trial, on payment of all defendant’s costs since the answer, and relinquishment of his contingent right to costs of appeal, if successful on the new trial.
p. 145
At Chambers,
May 29, 1860.
The complaint contained allegations for work and labor done at the request of defendants. At the trial the plaintiff recovered judgment. On the appeal the judgment was reversed and a new trial ordered, the costs to abide the event, on the ground that the contract in writing between the parties contained a clause that payment was to be made after the common council of defendants had-made an appropriation therefor, and the complaint contained no allegation either that an appropriation had been made, or that the plaintiff had petitioned the common council for payment and that a reasonable time had elapsed to enable them to make the appropriation. The plaintiff then moved for leave to amend his complaint by inserting allegations in conformity to the opinion of the general term.
Geo. R. Thompson, for the motion.
Greene C. Bronson, opposed.

The motion must be granted. The plaintiff, however, must pay, as a condition of the order allowing the proposed amendment, the defendants’ taxable costs since the answer was served, and must relinquish his right to the costs of the appeal heretofore determined ordered to abide the event of the new trial, in the event of his succeeding in the action. (Downer agt. Thompson 6 Hill, 377 .) Ordered accordingly.[1]

* Costs adjusted by the judge so as to include all defendants’ costs since the answer, the costs of the appeal, and all defendants’ disbursements, to be paid as a condition of the order.