Nicoll v. Lloyd — 67 N.Y.S. 947

Majority

p. 947

NICOLL v. LLOYD.

(Supreme Court, Appellate Term.

January 10, 1901.)

Headnote

Judgment eor Plaintive — Reversal—New Trial—Amendment—Costs op Former Appeal.

Where on appeal a judgment for plaintiff was reversed because he had brought a wrong action, it was error on a new trial to grant plaintiff leave to amend his complaint without allowing defendant the costs of the appeal.

Appeal from municipal court, borough of Manhattan, Second district.

Action by Charles E. Nicoll against Thomas Lloyd. From a judgment in favor of plaintiff, both parties appeal.

Reversed on both appeals.

Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.

Benjamin & Loeser, for appellant.

William C. Tim, for respondent.

Both parties appeal from the judgment. A former judgment in favor of the plaintiff was reversed because the

p. 948

action was brought for work, labor, and services performed, whereas it should have been for damages for breach of contract, and the order of reversal awarded to the defendant, costs to abide the event. Nicoll v. Lloyd, 26 Misc. Rep. 799 , 56 N. Y. Supp. 178 . Upon the second trial the justice, against the defendant’s objection and exception, permitted the complaint to be amended so as to demand damages for breach of contract, no terms being imposed as a condition of such amendment. This was error. The defendant should, at least, have been allowed the costs of the former appeal. The plaintiff appeals upon the ground that the amount of damages awarded by the justice was manifestly inadequate under the evidence. In this he is .clearly right, assuming that the plaintiff is entitled to damages at all. In fact, it would seem that the amount for which judgment was awarded must have been inserted by an inadvertence.

Upon both appeals the judgment must be reversed, and a new trial granted, but without costs to either party.