Hyperlawhypertext legal database Breisacher v. McAuley 130 N.Y.S. 137

← Cases

Breisacher v. McAuley

130 N.Y.S. 137 Court N.Y. App. Term Decision date 1911-06-12 English

Delivered by GUY, J.

Contents

Majority

p. 137
BREISACHER v. McAULEY.
(Supreme Court, Appellate Term.
June 12, 1911.)

Headnote

Appeal and Error (§ 1139[1] )—Amendment—Terms.
Where an appeal was taken from an order allowing the service of an amended complaint, and there was evidence of loches and neglect to prosecute, the amendment should not be allowed to stand, except on condition that plaintiff pay taxable costs to date, including costs of the appeal
[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 4448; Dec. Dig. § 1139.[1] ]
Appeal from City Court of New York, Special Term.
Action by Dorothea E. Breisacher against Michael J. McAuley. From a City Court order, allowing service of an amended complaint without terms, defendant appeals.
Modified and affirmed.
Argued before SEABURY, CUY, and BIJUR, JJ.
Mirabeau E. Towns (Joseph W. Bryant, of counsel), for appellant.
Harvey T. Andrews (William Barnes, of counsel), for respondent.

Action against defendant, a police officer, for trespass and advising plaintiff’s tenants to remove from plaintiff’s building. The defendant answered, denying all trespass or defamation. The

p. 138
amended complaint added allegations of express malice,' characterizations of the alleged defamatory matter, and allegations of special damages.

The substitution of a new attorney for the plaintiff lends some support to the plaintiff’s claim that her former attorney did not question her with sufficient particularity when he drew the original complaint. There is, however, evidence of loches and neglect to prosecute. If the amendment is allowed to stand, the plaintiff should pay the taxable costs to date, including the costs of this appeal. Kerrigan v. Peters, 108 App. Div. 292 , 95 N. Y. Supp. 723 ; Bruns v. Brooklyn Citizen, 98 App. Div. 316 , 90 N. Y. Supp. 701 ; Rosenberg v, Feiering, 124 App. Div. 522 , 523, 108 N. Y. Supp. 941 .

Order modified, so as to provide for payment by plaintiff of all taxable costs to date, and, as so modified, affirmed, with $10 costs and disbursements to appellant. All concur.

Cases cited