Gunsaul v. Grannis

Order appealed from reversed, " without costs to either party, and motion for leave to serve an amended answer herein granted, upon payment to the plaintiff’s attorney of $10 costs of such motion and ali costs and disbursements of the action subsequent to the service of the original answer, except the costs of the appeal to this court from the judgment, and upon the further condition that the defendants stipulate to waive their right in any event to the costs of such appeal, and that the defendants pay the costs herein allowed at or before the opening of the trial term on Wednesday morning, March 27, 1901, and stipulate to thereupon proceed with the trial of the action, at the plaintiff’s election. Upon the payment of such costs and the giving of said stipulation the proposed amended answer to stand as served; but, in the event that these conditions are not complied with, the order appealed from is affirmed, with $10 costs and disbursements. All concur, except ADAMS, P. J., who dissents upon the ground that the denial of the motion was within the proper exercise of the discretionary power of the special term.