Simon v. Ellman , 58 N.Y.S.2d 542 ( 1945 )

In an' action to recover for brokerage commissions a mistrial was declared, and thereafter plaintiffs obtained leave at Special Term to serve a second amended complaint and an amended bill of particulars. Order modified on the law and the facts hy striking out the first ordering paragraph and by striking from the second ordering paragraph everything following the words “ second amended complaint”, and substituting in place thereof the following “upon the attorneys for the defendants herein, upon condition that plaintiffs, within ten days pay to defendants the amount of their costs to the date of the bringing of this motion — one bill of costs; and upon the failure to make such payment this motion is denied, and it is further,”. As thus modified the order is affirmed, with $10 costs and disbursements to appellants. Under all the facts and circumstances the amendment should not have been permitted except upon suitable terms. Upon service of the second amended complaint defendants may move as they may be advised with relation to a demand for a bill of particulars. Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.