Hyperlawhypertext legal database Ross v. Bayer-Gardner-Himes Co. 87 N.Y.S. 36

← Cases

Ross v. Bayer-Gardner-Himes Co.

87 N.Y.S. 36 Court N.Y. App. Div. Decision date 1904-03-11 English

Contents

Majority

p. 36
ROSS v. BAYER-GARDNER-HIMES CO.
(Supreme Court, Appellate Division, First Department.
March 11, 1904.)

Headnote

1. Pleading—Amendment—Conditions.
As a condition for the service of an amended complaint, plaintiff should be required to pay all costs in the action except a trial fee for a trial at which a juror was withdrawn, such payment having been imposed on the plaintiff as a condition for allowing the withdrawal of the juror.
Appeal from Special Term, New York County.
Action by Charles R. Ross against the Bayer-Gardner-Himes Company. From an order granting motion for leave to amend complaint, defendant appeals. Modified and affirmed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and EAUGHLIN, JJ.
Charles B. Blair, for appellant.
John Aitken, for respondent.

The order should be modified by requiring the plaintiff, as a condition for the -service of the amended complaint, to pay to the defendant all costs in the action, except a trial fee for the trial at which a juror was withdrawn, the court having imposed the payment of such trial fee upon the plaintiff as a condition for allowing the withdrawal of the juror, and, as thus modified, the order should be affirmed, without costs of this appeal.