Perrington v. Ludin — 125 N.Y.S. 1139

Majority

p. 1139

PERRINGTON v. LUDIN et al.

(Supreme Court, Appellate Division, First Department.

October 28, 1910.)

Headnote

Appeal from Special Term, New York County. Action by Frank Perrington against Susan S. Ludin and another. From an order granting defendants leave to serve an amended answer, plaintiff appeals. Modified and affirmed.

A. Liehtig, for appellant. W. O. Low, for respondents.

The order appealed from should be modified by requiring the defendants as a condition of serving the amended, answer to pay full costs of action to date and $10 costs of opposing the motion; and upon the further condition that within 30 days after entry of order hereon the plaintiff, if he so elect, may discontinue the action .without costs to either par

p. 1140

ty, and, further, that, if the amended answer is served, the case shall retain its position upon the calendar, and be tried when reached. As so modified, the order should be affirmed, ■without costs of appeal to either party.