Fox v. Davidson — 58 N.Y.S. 147

Majority

p. 147

FOX v. DAVIDSON.

(Supreme Court, Appellate Division, First Department.

May 19, 1899.)

Headnote

Pleading—Amendment—Teems.

Where plaintiff recovers judgment, and the same is reversed on appeal on account of the insufficiency of the complaint, with costs to abide the event, plaintiff will be permitted to amend only on condition that he pay the costs of the action subsequent to the service of the complaint, and also the costs of the appeal.

Appeal from special term, New York county.

Action by Henry E. Fox against Isaac Davidson. Application for order granting plaintiff leave to serve amended complaint. Application granted, and defendant appeals.

Modified, and affirmed as modified.

Argued before VAN BRUNT, P. J., and BARRETT, RÜMSEY, and PATTERSON, JJ.

H. A. Forster, for appellant.

E. L. Mooney, for respondent.

We think that the court might very well have denied the motion to amend. It is conceded that, upon the record as it stands, the defendant must succeed, and that he has been compelled to go through a trial and an appeal in order to establish the correctness of his position; and as has been said in the case of Mc-Entyre v. Tucker (decided herewith) 58 N. Y. Supp. 146 , he is entitled to be reimbursed for the proceedings by which he was enabled to establish his defense.

We think, therefore, that the order should be modified by requiring, as a condition of amendment, that all the costs of the action, including those of the. appeal, subsequent to the service of the complaint, should be paid. The order, as so modified, should be affirmed, without costs. All concur.