cally different from that litigated upon the trial. The defendants have succeeded upon the issue already tendered by the plaintiff, and the plaintiff consequently desires to take a new tack, and try the case on a different theory. The special term granted the amendment, but required the plaintiff to pay, as a condition of the favor, $200 costs to the defendant bank, and $100 to the defendant Ross, the receiver appointed in proceedings supplementary to execution on a judgment recovered by the bank against Dickison and Allen, the contractors. The costs and disbursements of the defendant bank amount to the sum of $799.42 and of this sum $519.42 were disbursements. The costs of the receiver are stated to be $265, and of the defendant Catherine Dickison, the wife of the contractor, $280. The rule is well settled that, when a plaintiff applies at special term for an amendment to his complaint which materially alters the scope of his action, such amendment will be granted upon payment of all the costs of the action antecedent to the granting of the application. McEntyre v. Tucker, 40 App. Div. 444, 92 St. Rep.

TERMS ON AMENDMENT OF PLEADINGS,-continued.

ment of all defendant's costs since the answer, and relinquishment of his contingent right to costs of appeal, if successful on the new trial.

Where the judgment in a case has been reversed by the Court of Appeals and new trial had on which the justice intimated that the plaintiff had failed to prove the cause of action set forth in the complaint, the plaintiffs were allowed to amend on payment of the costs of the action, not exceeding $300. Held: That the plaintiffs should also have been required to stipulate that, in the event of the plaintiffs' successful issue on the action, they would not tax the costs of the former trials and appeals had therein. Brady v. Cassidy, 37 St. Rep. 501; 13 Supp. 824.

Where the trial of a cause has been adjourned many times on motion of the defendant and other circumstances point to lack of good faith on his part, it is eminently proper for the court at Special Term to require, as a condition to granting the amendment to the answer, that the defendant pay all the costs and disbursements of the plaintiff since the notice of trial. The Tribune Association v. Smith, 40 Super. Ct. 81.

In Bateman v. Forty Second St. etc. Ry. Co. 5 Supp. 13, where there had been a demurrer interposed and the plaintiff had been permitted to amend the complaint without costs, the court held that the defendant should have leave to answer without the payment of any costs.

1899]

Bates v. Salt Springs Nat. Bank.

146, 58 N. Y. Supp. 146; Cramer v. Lovejoy, 41 Hun, 581, 5 St. Rep. 190; Brady v. Cassidy (Com. Pl.) 37 St. Rep. 501, 13 N. Y. Supp. 824; Frisbie v. Averell, 87 Hun, 217, 67 St. Rep. 758, 33 N. Y. Supp. 1021.

In McEntyre v. Tucker, supra, the court, in criticising the granting of the amendment upon payment of $50 and $10 motion costs, say:

"It seems to us that the terms upon which the motion was granted were entirely inadequate. It is conceded by the motion that the plaintiff cannot recover in the present form of action. The defendant was therefore justified in defending, and, for the costs and disbursements to which he has been put in the establishment of a successful defense, he is entitled to be reimbursed. It seems to us, therefore, that he is entitled to recover his costs and disbursements for all proceedings subsequent to the service of the complaint, and also to recover the costs and disbursements of appeal, where such costs were given him to abide the event of the action."

The

The justice of this rule is well illustrated in this case. defendants were forced to make the fight on the lines laid by the plaintiff, and the court of appeals has held there can be no recovery on that cause of action. The defendants have been put

TERMS ON AMENDMENT OF PLEADINGS,-continued.

In an action, brought against the directors of a bank, the plaintiff failed to make the receiver of the bank a party. Only one of the defendants raised the objection by demurrer; the others all waived it by answering. The plaintiff was allowed to amend his complaint by bringing in the receiver but on condition that he pay costs, up to that time, to all the defendants. Held: That the plaintiff should not be compelled to pay costs to the defendants who did not demur.

Hand v. Burrows, 15 Hun, 481.

Where a demurrer had been argued and there had been one amendment without costs, the plaintiff was allowed to amend by payment of costs of demurrer.

Hallock v. Robinson, 2 Cai. 233.

The General Term, upon appeal from an order of the Special Term granting leave to plaintiff to amend unconditionally, affirmed the order, except that it coupled with it a provision absolutely postponing the lien of the plaintiff's judgment. He'd: That the order should have been in the form of granting the favor up n condition of his assenting to the postponement

to the costs in the effort to vindicate their position, and, if the plaintiff desires to try another cause of action, then he should first make the defendants whole for what they have already incurred, to the extent of the taxable costs and disbursements. The order of the special term should be modified by striking out the specific sums imposed as a condition of the amendment, and in lieu thereof requiring the plaintiff to pay the costs and disbursements of the defendant bank, to be taxed by the clerk of Oneida county. The receiver was appointed on the application of the bank, and the assignment to that institution was partly in security of notes on which Catherine Dickison was indorser, so that the real defendant is the bank itself, and it alone should be awarded costs. The amended complaint is to be served and the said costs are to be paid within 30 days after the taxation thereof. Said order should be further modified by eliminating therefrom the restrictions upon the defendants to plead the statute of limitations as a defense to the amended complaint.

The order, as so modified, is affirmed, without costs of this appeal to either party. All concur.

TERMS ON AMENDMENT OF PLEADINGS,-Continued.

of his lien, thus giving the option to him to amend on the conditions imposed

or not.

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

Where an offer of judgment has been made by the defendant, and the plaintiff is subsequently allowed, by amending his complaint, to increase his demand as to the interest charge, the court should condition the amendment of the complaint upon an allowance of a change in the offer to meet it, or make the excess in the amount of interest demanded of no avail to defeat the offer.

Brooks v. Mortimer, 10 App. Div. 518; 76 St. Rep. 299; 42 Supp. 299. In Jackson v. Brownel, 3 Johns. 139, after argument of the case and before decision, the defendant was allowed to amend the case by correcting a mistake therein in the statement of the testimony given at the trial, by paying the costs of the argument and allowing the plaintiff the option of being nonsuited or of having a new trial.

Where the defendant had a good defense, but relying on a technical error, -a variance between the instrument declared on and the declaration,omitted to prepare for trial, and the circuit judge disregarded the variance

TERMS ON AMENDMEnt of l'LEADINGS,-continued.

and allowed the plaintiff to take verdict, the court allowed the plaintiff to amend his declaration without costs, but on condition that he vacate his verdict.

Carpenter v. Payne, 10 Wend. 604.

In Hartson v. Davenport, 2 Barb. Ch. 77, the plaintiff was allowed to amend by bringing in another party to the suit, on condition that he pay the costs of the defendants' demurrer and the costs of the motion to amend.

Unless an exception is taken at the time the terms, on which leave to amend is granted, are imposed such terms will be deemed to be acquiesced in.

Griggs v. Howe, 31 Barb. 100.

In Tooker v. Arnoux, 10 Weekly Dig. 132, after a new trial had been ordered, on appeal to the Court of Appeals and the defendant had interposed a new defense, which if proven would defeat the action, the plaintiff was allowed to amend on payment of costs of the Court of Appeals, the other costs to abide the event of the action.

The court said if plaintiff had sought to amend for the purpose of making a cause of action, he would have been obliged to pay all the costs which had accrued.

Where a demurrer has been sustained, as to a portion of an amended answer, the court gave the defendant leave to serve a second amended answer which he did not do, but when the case was brought to trial he again moved to amend. Held, that the proper terms, on which such an amendment should have been granted, were not only the payment of the taxable term fecs from the time the first amended answer was served, but the filing and serving of an affidavit of merits.

Haggarty v. Phelan, 46 St. Rep. 531; 18 Supp. 789.

Where, because of a clerical error, by the record it appeared that the suit was commenced before the cause of action accrued, the plaintiff, on the argument of a motion in arrest after verdict, was permitted to amend on payment of all the costs of the defendant, and after such amendment was entitled to judgment on his verdict.

Thomas v. Leonard, 11 Wend. 53.

Whenever a plaintiff is allowed to amend his declaration, the defendant is entitled to costs and the right to plead de novo.

Webb v. Wilkie, 1 Cai. 153.

Holmes v. Lansing, Col. & Caines, 92; 1 Johns. Cas. 248.

An order allowing an amendment to a complaint, without giving defendant an opportunity to answer, is erroneous.

Palmer v. Salisbury, 38 App. Div. 139; 90 St. Rep. 637; 56 Supp. 637.

Upon the complaint being amended in a material particular, the defendant has an absoulte and unrestricted right to interpose any lawful defense which he may possess.

Harriott v. Wells, 9 Bosw. 631.

TERMS ON AMENDMENT OF PLEADINGS,—continued.

By section 272 of the Old Code, giving referees the same power to allow amendments as the court upon the trial, the referee has power, on application to amend the complaint on trial by inserting material allegations, concerning which no evidence has been given, to impose, as a condition to allowing the amendment that the defendant be permitted to answer or demur to the amended complaint.

Smith v. Rathbun, 75 N. Y. 122, Reversing 13 Hun, 47.

After a motion has been made to set aside a pleading for a defect therein, the same cannot be amended without payinent of costs.

Williams v. Wilkinson, 1 Code. R. (N. S.) 20.

In Stemler v. New York, 45 App. Div. 573; 95 St. Rep. 403; C1 Supp. 403, the defendant was allowed to amend its answer upon condition that it stipulate to apply for a preference of the case on the calendar, so as to avoid the delay attendant upon renoticing the case for trial, and upon payment of the costs of the action to date.

2. Change of cause of action or defense.

An amendment which changes the cause of action but not the nature of the claim will be allowed upon payment of term and notion costs, unless the defendant changes his defense, in which case he is entitled to the payment of all the costs up to the time of the amendment.

Chapman v. Webb, How. Pr. 390.

It is the universal rule that, in the allowance of amendments which change substantially the nature of the subject of the action or the nature of the defense and present new issues, such terms should be imposed as may indemnify the other party for Jis taxable costs incurred in the action, provided he has raised the objection at the first opportunity.

Marsh . McNair, 40 Ilun, 216.

Prindle v. Aldrich, 13 How. Fr. 466.

Proctor . Andrews, 1 Sand. 70.

Ferris v. Hard, 6 Misc. 359; 27 Supp. 252.

Carrier v. Dellay, 3 How. Pr. 173.

Downer v. Thompson, G Hill, 377.

Where a new cause of action is introduced by amendment, the costs up to the date of the amendment should be paid by the party applying for the favor.

Nanetty v. Naylor, 2 Law Bull. 65.

Miller v. Watson, 6 Wend. 506.

The rule laid down in Union Bank v. Mott, 11 How. Pr. 42, is that in all cases of the amendment of pleadings, the amendment shall not be made at the expense of the opposite party and he must be indemnified for all addi tional expense involved in such amendment.