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litigation in which she was successful. No question is made by the defendants as to the power of the court. It follows that that part of the judgment which provides that the plaintiff's costs shall be paid from the whole of the proceeds should be modified by providing that the plaintiff's costs, except the costs and expenses of the trial, shall be paid from the whole of the proceeds, and that the plaintiff's costs and expenses of the trial be paid from the share of the proceeds represented by the defendants, and that the judgment, as so modified, be affirmed.

Judgment modified as stated in the opinion, and, as modified, affirmed, so far as appealed from, with costs of appeal to the appellant. Order affirmed, with $10 costs and disbursements to respondents. All concur.

COSTS IN PARTITION ACTIONS,-continued.

In an action for partition of lands, part of a residuary estate, the devise of which was sustained against the plaintiff's contention, an additional allowance of $150 was granted and sustained upon appeal.

Preston v. Howk, 3 App. Div. 43, 74 St. Rep. 426; 37 Supp. 1079.

As a rule the granting or refusing of an extra allowance of cost is within the discretion of the court to which application is made.

Riley v. Hulbert, 13 Weekly Dig. 101.

Morss v. Hasbrouck, Id. 393.

An attorney for a plaintiff in an action for partition, who has received an extra allowance exceeding an amount permitted by the statute may be compelled to return the excess to the referee; but as the statutory compensation does not measure the value of the attorney's services he will, notwithstand ing the substitution of attorneys and the consequent loss of lien, be allowed to take an order referring it to the same referee to determine what additional sum, if any, should be paid by the plaintiff out of his distributive share in order to compensate his original attorney fully.

Cooper v. Cooper, 27 Misc. 595; 93 St. Rep. 86; 59 Supp. 86. VII. N. Y. A. C.

6

Appellate Division.

BATES v. SALT SPRINGS NAT. BANK et al.

[43 App. Div. 321; 94 St. Rep. 313; 60 Supp. 313.]

(Supreme Court, Appellate Division, Fourth Department. 1899.)

PLEADING AMENDMENT OF COMPLAINT AFTER APPEAL-Costs. Where a plaintiff has been defeated on the trial of his action, and on appeal to the supreme court the decision of the lower court is affirmed, but the judgment of that court is reversed by the court of appeals, “with costs to abide the event," an amendment to the complaint which materially alters the scope of the action will only be allowed at special term upon payment by him of all the costs of the action antecedent to thegranting of the motion.

NOTE.

a. Discretion of court.

b. In general.

[Oct.

Appeal from special term, Oneida county.

Action by Edward P. Bates against the Salt Springs National

TERMS ON AMENDMENT OF PLEADINGS.

October 13,

c. Change of cause of action or defense.

d. Immaterial variance or technical defect.

a. Discretion of court.

The terms on which leave is given to amend pleadings are in the discretion of the court allowing the amendment.

Code of Civil Procedure, sections 497, 539, 540, 542, 2944.

Eggert v. Bonnett, 4 Law Bull., 5.
Vibbard v. Roderick, 51 Barb. 616.
Van Ness v. Bush, 22 How. Pr. 481.

While the Court of Appeals has power to correct a General Term order which absolutely postpones the iien of the judgment, so as to make the postponement a condition, it will not interfere further with the discretion of the court by imposing other conditions.

Symson v. Selheimer, 105 N. Y. 660; 12 N. E. 31.

In Schermerhorn v. Wood, 30 How. 316, it was held that it is only when a

1899]

Bates v. Salt Springs Nat. Bank.

Bank and others. From an order amending plaintiff's complaint, defendants appeal. Modified and affirmed.

Argued before HARDIN, P. J., and ADAMS, MCLENNAN, SPRING, and SMITH, JJ.

William G. Tracy, for appellant bank.

Charles G. Baldwin, for appellant Ross, receiver.

Edwin H. Risley, for respondent.

SPRING, J. This action was brought to foreclose a mechanic's lien, and is the result of a consolidation of two actions. The Salt Springs National Bank defended, alleging it was the owner of the fund sought to be charged with the payment of the plaintiff's

TERMS ON AMENDMENT OF PLEADINGS,-continued..

party, by the terms upon which an amendment is granted, is deprived of that to which he has a strict legal right, that an order allowing an amendment is reviewable.

An amendment without costs is an amendment "upon such terms as may be proper" within the meaning of the section which refers the terms to the discretion of the court. (Code, Civ. Pro.. 723).

Cayuga Co. Bank v. Warden, 6 N. Y. 19.

On a motion to amend a complaint, the judge at a Special Term has undoubted rights to inpose terms on the plaintiff notwithstanding the order permitting him to sue in forma pauperis.

Coyle v. Third Ave. R. R. Co. 19 Misc. 345, 77 St. Rep. 499; 43 Supp. 199.

The amount to be imposed as a condition to allowing the amendment to the complaint by setting up a new cause of action would be the costs which had accrued.

Id.

Paige, J., in Harrington v. Slade, 22 Barb., 181, said "Under the provisions of the Revised Statutes and the Code, it is the duty of the court to allow amendments in furtherance of justice, upon such terms as shall be just and proper."

The question of the terms on which leave to amend should be granted in an equitable action, is in the discretion of the court.

Mutual Life Ins. Co. v. Hoyt, 15 Weekly. Dig. 489.

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lien. This claim was based upon an assignment of the contract by the building contractors, and it was to secure existing and prospective liabilities of those contractors to the bank. The plaintiff, at the time the complaint was framed, knew of the existence of this assignment, and charged the assignors with fraud in its execution; but the conduct of the defendant bank in procuring or accepting it was not assailed, and no imputation was made that it lacked consideration, or that the officers of the bank knew of the insolvency of the contracters. The question litigated on the trial was as to the effect to be given to one clause in the building contract providing that payment thereon should be preceded by a certificate of the clerk of Oneida county that no liens were filed against the premises upon which the building was erected. The final payment provided for in the agreement was not to be made until after the completion of the building. and it was contended that this clause in the agreement referred to was for the protection of the lienors, as well as the trus

TERMS ON AMENDMENT OF PLEADINGS,-continued.

Dox v. Dey, 3 Wend. 356.

Curtis v. Lawrence, 17 Johns. 111.

[Oct.

b. In General.

Before the adoption of the Code it was well settled that the Supreme Court had no power to allow an amendment after verdict, by increasing the amount of damage claimed to correspond with the verdict, except upon the condition that the plaintiff relinquish the verdict, pay the defendant's costs of trial and consent to a new trial.

The Code has not changed this rule.
Corning v. Corning, o N. Y. 97.
Decker v. Parsons, 11 Hun, 295.

In Ireland v. Met. El. Ry. Co. S St. Rep. 127, where there had been a reversal of judgment by the General Term and new trial ordered, with costs to abide the event, at which new trial, because of the objection of the defendant to the sufficiency of the complaint, the plaintiff was allowed to amend, the court held that the terms or which the amendment should have been were the payment of "costs awarded to the appellant on the appeal and tea dollars costs of the motion."

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

1899]

Bates v. Salt Springs Nat. Bank.

tees of the Masonic Hall to be built. The evidence given related to this specific question. The trial court based its decision upon the construction of the written agreement, and it was affirmed in the general term on that ground. The court of appeals reversed the judgment, with costs to abide the event (157 N. Y. 322, 51 N. E. 1033); disagreeing with the lower courts in the interpretation of the agreement, and holding that the assignment to the bank was superior to the mechanics' liens. The plaintiff thereupon applied to the special term for an amendment of the complaint, charging the defendant bank with fraud in procuring the assignment; that it knew at the time that the contractors were insolvent, and that the assignment was purposely kept secret from the subcontractors and material men in order that the work might be carried on in reliance upon the contract, and in the expectation that the money to be paid thereon would be primarily liable for their claims. It is apparent this raises an issue radi

TERMS ON AMENDMENT OF PLEADINGS,-continued.

be permitted to amend his pleadings, except on the payment of all the costs to date of amendment.

Walton v. Mather, 10 Misc. 216; 63 St. Rep. 380; 31 Supp. 111.

Followed in Howard v. Moller, 11 Misc. 719, 64 St. Rep. 875; 31 Supp.

1129.

And in Coyle v. Third Ave. R. R. Co. 19 Misc. 345; 77 St. Rep. 499; 43 Supp. 499.

Cramer v. Lovejoy, 41 Hun, 581; 5 St. Rep. 190.

Nanetty v. Naylor, 2 Law Bull. 65.

Where a firm composed of three persons, was sued in the firm name, the complaint alleging that the names of the individual members of said firm were unknown to the plaintiff, only one of the defendants appeared and answered and judgment in his own favor and not in that of himself and his copartners was rendered. After judgment the defendants were allowed to amend their answer so as to claim the property as belonging to the individuals composing the firm and also to amend the judgment in accordance with the facts proved on the trial, on the terms of affirmance of judgment without costs of the appeal.

Thompson v. Kessel, 30 N. Y. 383.

In McGrane v. The Mayor etc., of New York, 19 Iow. Pr. 144, the plaintiff, whose judgment had been reversed at General Term and a new trial ordered, with costs to abide the event, was allowed to amend his complaint on pay

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