Majority
p. 681(115 App. Div. 172) PALAZZO v. DEGNON MacLEAN CONTRACTING CO. Supreme Court, Appellate Division, First Department. October 19, 1906. Argued before O’BRIEN, P. J., and INGRAHAM, CIARKE, HOUGHTON, and SCOTT, JJ.
Headnote
Pleading—Amendment—Conditions.Where at the close of the case the court allows a juror to be withdrawn, and thereafter plaintiff moves for leave to amend the complaint to set up with more particularity the defects complained of as negligence, he should be required, as a condition to amending, to pay, not only costs of the motion, but all taxable costs to the date of the motion.
[Ed. Note.—For cases in point, see vol. 39,' Cent. Dig. Pleading, §§ 626-635.]
Appeal from Special Term, New York County.
Action by Antonio Palazzo against the Degnon MacLean Contracting Company. From an order allowing amendment of the complaint, defendant appeals. Modified.
James F. Donnelly, for appellant.
Henry J. Goldsmith (Jonathan Deyo, of counsel), for respondent.
This was an action to recover damages for the alleged negligence of the defendant. Upon the trial, at the close of the case, by permission of the court a juror was allowed to be withdrawn. Thereafter plaintiff moved for leave to amend his complaint in order to enable him to set up with more particularity the defects complained of. The order appealed from granted the motion upon the payment of $20 costs.
The order should be modified by providing for the payment by the plaintiff of all taxable costs to the date of the motion for leave to amend, with $10 costs of that motion, and, as so modified, affirmed, without costs in this court.