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Walton v. Mather

31 N.Y.S. 111 Court N.Y. City Ct. Decision date 1894-11-20 English

Delivered by EHRLICH, O. J.

Contents

Majority

p. 111
(10 Misc. Rep. 216.)
WALTON v. MATHER.
(City Court of New York, General Term.
November 20, 1894.)

Headnote

Pleading—Amendment—Payment op Costs.
Where a judgment for plaintiff has been reversed on appeal, and a new trial ordered, costs to abide event, plaintiff will not be permitted to amend except on payment of all costs to date, and therefore the allowance of an amendment in such ease on payment of $20 costs is erroneous.
Appeal from special term.
Action by Henry E. Walton against Margaret Mather. From an order allowing plaintiff to amend his complaint on payment of $20 costs, defendant appeals.
Reversed.
Argued before EHRLICH, C. J., and VAH WYCK, J.
Dittenhoefer & Gerber, for appellant.
Nathan Lewis, for respondent.

It appears that this action was tried, and a verdict rendered in favor of the plaintiff, which was, on appeal, reversed, and a new trial ordered, with costs to abide the event. 24 N. Y. Supp. 307 . The action came up for a second trial, and on account of some objection to the complaint a juror was withdrawn, to the end that the plaintiff might apply at special term for leave to amend his complaint. The application was heard, and granted upon condition that the plaintiff pay to the defendant’s attorney the sum of $20 costs of motion. The defendant appeals from this order on the ground that the terms are inadequate.

The authorities seem to be uniform that where an action has been tried once, and the judgment reversed at the instance of the defendant, with costs to abide the event, the plaintiff will not be permitted to amend his pleadings except on payment of all the costs to date. Ireland v. Railroad Co., 8 N. Y. St. Rep. 127 ; Cramer v. Lovejoy, 41 Hun, 581 ; Satterlee v. Claremont, Daily Reg. May 24, 1883; Manetta v. Naylor, 2 Law Bul. 65, 66. It follows, therefore, that the order appealed from must, in so far as it grants leave to amend “upon payment of twenty dollars costs,” be reversed, with costs, and that such amendment be allowed on payment of all the costs to date, and, in default of such payment, that the application for leave to amend be denied.

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