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Russo v. Lordi

125 N.Y.S. 412 Court N.Y. App. Term Decision date 1910-10-20 English

Delivered by SEABURY, J.

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p. 412
RUSSO v. LORDI et al.
(Supreme Court, Appellate Term.
October 20, 1910.)

Headnote

Pleading (§ 239[1] )—‘Complaint—Amendment—Allowance—Costs.
Where defendants In good faith appear by separate attorneys, the courts allowing plaintiff leave to amend his complaint so as to require both defendants to plead anew and prepare to meet the new issue tendered by the amended complaint, must award costs to both defendants as a condition of the amendment
[Ed. Note.—Eor other cases, see Pleading, Cent. Dig. § 630; Dec. Dig- § 239.*)
Appeal from City Court of New York, Special Term.
Action by Luigi Russo against John Lordi and another. From am order granting a motion to amend the complaint, defendant Lordi appeals.
Modified and affirmed.
Argued before SEABURY, PAGE, and BIJUR, JJ.
Palmieri & Wechsler, for appellant.
Isador Dobroezynski, for respondent.

This action is brought against the defendant Lordi as owner and the defendant Cantelmo as contractor for work performed and materials furnished to the defendants. The defendants appeared in the action by separate attorneys, and their good faith in-so doing is not questioned. When the action first came to trial, the plaintiff's motion to withdraw a juror and to amend his complaint was-granted, upon the payment of costs only to the defendant Lordi. Subsequently the plaintiff again asked leave to amend his complaint. This-motion was granted upon the payment of costs to the defendant Cantelmo. The defendant Lordi1 now appeals from so much of the order as fails to make an award of costs to him.

The amended complaint made it necessary for both of the defendants to plead ¿new and to prepare for- trial, so as to meet the issue ten

p. 413
dered by the amended complaint, and should only have been granted upon costs being awarded to both of the defendants. Rowe v. Granger, 118 App. Div. 459 , 103 N. Y. Supp. 439 .

The order is modified, by awarding a separate bill of costs to each defendant, and, as modified, is affirmed, with $10 costs and disbursements to the appellant. All concur.

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