Jones v. Reilly — 83 N.Y.S. 1108

Majority

p. 1108

JONES et al. v. REILLY et al.

(Supreme Court, Appellate Division, First Department.

July 7, 1903.)

Headnote

Action by John M. Jones and others as executors, etc., against Margaret T. Reilly and others. From an order granting plaintiff’s motion to serve an amended or supplemental complaint, defendants Rockwell arid Brooke appeal. Affirmed. Peter A. Hendrick, for appellants. Richard T. Greene, for respondents.

The order appealed from is modified, by requiring the plaintiffs, as a condition of the amendment, to pay all the taxable costs in the action to the time the amendment was made, and, as thus modified, affirmed, without costs to either party.

I dissent There is not the slightest particle of evidence to show that all the facts in the amended complaint were not known to the plaintiffs at the time of the commencement of the original action, and

Dissent

p. 1109

the rule is well settled, except in this department, that where such is the case a motion to amend.should be denied.