Klinker v. Guggenheimer — 92 N.Y.S. 797

Majority

p. 797

KLINKER et al. v. GUGGENHEIMER.

(Supreme Court, Appellate Term.

March 21, 1905.)

Headnote

1. Pleadings—Amendment—Conditions—Payment of Costs.

Where, after the reversal of a judgment on appeal, defendant was bound to be' defeated and to be mulcted in costs as the record then stood, she should be allowed to amend only on the payment of the costs already accrued.

2. Appeals—Appealable Obdebs.

An order granting defendant leave to amend is not appealable, under the Municipal Court act (Laws 1902, p. 1486, c. 580).

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by William H. Klinker and another against Adelaide E. Guggenheimer. From an order granting defendant leave to amend, plaintiffs appeal. Dismissed.

Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.

Frank Herwig, for appellants.

Charles E. Le Barbier, for respondent.

The justice was authorized to grant the "amendment, but, under the circumstances, he should have imposed the payment of costs as a condition. As the record stood before the amendment, the defendant was bound to be defeated and to be mulcted in costs, for the ground on which the reversal of the former judgment went left no other alternative. 43 Misc. Rep. 393 , 87 N. Y. Supp. 474 . She should not by an amendment at this late day not only defeat the plaintiffs’ claim, but also escape the payment of the costs already accrued. We cannot, however, entertain this appeal, because the order sought to be reviewed is not appealable, under the Municipal Court act (Laws 1902, p. 1486, c. 580). Leavitt v. Katzoff, 43 Misc. Rep. 26 , 86 N. Y. Supp. 495 .

Appeal dismissed, without costs.