Walton v. Mather

It appears that this action was tried, and a verdict rendered in favor of the plaintiff, which was, on appeal, reversed, and a new trial ordered, with costs to abide the event. The action came up for a second trial, and on account of some objection to the complaint a juror was withdrawn, to the end that the plaintiff might apply at special term for leave to amend his complaint. The application was heard, and granted upon condition that the plaintiff pay to the defendant’s attorney the sum of $20 costs of motion. The defendant appeals from this order on the ground that the terms are inadequate.

The authorities seem to be uniform that where an action has been tried once, and the judgment reversed at the instance of the defendant, with costs to abide the event, the plaintiff will not be permitted to amend his pleadings except on payment of all the costs to date. Ireland v. Met. El. R. R. Co., 8 St. Rep. 127 ; Cramer v. Lovejoy, 41 Hun, 581 ; 5 St. Rep. 190 ; Satterlee v. Claremont, Daily Reg. May 24, 1883; Manetta v. Naylor, 2 Law. Bui. 65, 66. It follows, therefore, that the order appealed from must, in so far as it grants leave to amend “ upon payment of twenty dollars costs,” be reversed, with costs, and that such amendment be allowed on payment of all the costs to date, and, in default of such payment, that the application for leave to amend be denied.