Coyle v. Third Avenue Railroad — 43 N.Y.S. 499

Majority

p. 499

(19 Misc. Rep. 345.)

COYLE v. THIRD AVE. R. CO.

(City Court of New York, General Term.

February 3, 1897.)

Headnote

Costs—Amendment of Complaint—Imposition of Teems.

Costs may be imposed on granting leave to amend a complaint which changed the cause of action after a reversal of judgment in favor of plaintiff, though he is suing in forma pauperis, and the costs as taxed were more than the judgment on the former trial.

Appeal from special term.

Action by Hugh Coyle against the Third Avenue Railroad Company for personal injuries. From an order imposing a condition to amend the complaint, and from a motion to set aside the taxation of costs, plaintiff appeals^ Affirmed.

Argued before McCARTHY and CONLAN, JJ.

Hyman Levy, for appellant.

Hoadly, Lauterbach & Johnston, for respondent

This is an appeal from two certain orders, one made by Mr. Justice Fitzsimons, imposing a condition on the plaintiff to amend Ms complaint, and. the other made by Mr. Justice Van Wyck, denying a motion to set aside a taxation of costs made by the clerk of this court. The action was one for negligence. On the trial the plaintiff recovered a verdict for $300. On appeal, the general term of this court affirmed the judgment. 40 N. Y. Supp. 362 . On appeal to the supreme court, the appellate term reversed • the judgment, and ordered a new trial, with costs to the appellant to abide the event. 40 N. Y. Supp. 1131 . The plaintiff, before the trial, duly obtained an order granting leave to sue in forma pauperis, which order has ever since been in force. The reversal was on the ground that the specific acts of negligence alleged in the complaint were not proved on the trial, and therefore it was error to deny the defendant’s motion to dismiss, made at the close of the plaintiff’s case, and again at the close of the case.

On the motion to amend the complaint at the special term, the judge had the undoubted right to impose terms on the plaintiff, notwithstanding the order permitting him to sue in forma pauperis. Moore v. Cooley, 2 Hill, 412 ; Elwin v. Bouth, 1 Civ. Proc. B. 131. The amount to be imposed would seem to be settled by the case of Walton v. Mather, 10 Misc. Rep. 261 , 24 N. Y. Supp. 307 , and cases therein cited.

The appellant urges with a good deal of force and apparent consistency that the orders appealed from practically operate as a denial of justice, insomuch as the cost taxed under the order of October 12, 1896, and wMch was to be deducted from any judgment the plaintiff might recover on the trial, was $40 more than the recovery had at the former trial. The appellate term reversed the trial term and the general term, with costs against the plaintiff, who was protected by a pauper order, to abide the event; and the event occurred when the plaintiff served a new complaint, setting up a new cause of action, thereby in effect abandoning the original complaint. We have looked for some way to relieve the plaintiff from what seems to be a hardsMp, but the opinion of the court above awarding costs leaves nothing for us to do but to affirm the order appealed from.

Order affirmed, with coste.

McCARTHY, J., concurs.