Majority
p. 37(83 App. Div. 254.) DIEBOLD v. WALTER et al. (Supreme Court, Appellate Division, First Department. May 8, 1903.) Argued before VAN BRUNT, P. J„ and McLAUGHLIN, O’BRIEN, INGRAHAM, and LAUGHLIN, JJ.
Headnote
1. Pleading—Amendment—Terms.Where a case was called for trial on the original complaint, which was found defective, and an amendment stating, in effect, a new cause of action, was permitted, terms of amendment allowing defendants only $10 costs, and ordering them to answer within 5 days, and that the case should be restored to its place on the day calendar, were too lenient to plaintiff. Defendants should have been allowed a trial fee in addition to costs, and have had the statutory 20 days to answer, and the ease should have taken its regular place on the calendar.
Appeal from Special Term, New York County.
Action by Louise Diebold against Anna Walter and Emilie Lampe. From an order allowing the service of an amended complaint, defendants .appeal.
Modified.
Alvin C. Cass, for appellants. .
Max Moses, for respondent.
As the case had been called for trial on the original complaint, and this was found defective, and the learned judge thereupon permitted the withdrawal of a juror, to the end that the
p. 38
plaintiff might move for leave to' serve an amended complaint, we think that the terms imposed in granting the motion, namely, that only $io costs of the motion be paid by the plaintiff, and that the defendants, who were not in fault, should serve an answer in five days, thus depriving them of the time allowed by the Code of Civil Procedure to answer or demur, and that against their- objection the case should be restored to its place on the day calendar, were too lenient to the plaintiff, and bore too harshly on the defendants. By the amendment, which, in effect, states a new cause of action, the plaintiff is enabled to seek a recovery upon a different theory, based on facts not included in the .original complaint. The defendants having been obliged to prepare and attend one trial, we think that the most favorable view to the plaintiff, upon the facts, would be to require her, in addition to' the $io costs of motion, to pay a trial fee, and to allow the defendants 20 days in which to answer the amended complaint; the case, upon service of the answer, to take its regular place on the calendar, and not to be restored to the day calendar.
In these respects, we think the order should be modified, and, as so modified, affirmed, with $10 costs and disbursements to 'the appellants.