Lydamore v. Foote ( 1939 )

Plaintiff, in this action for malpractice brought against a dentist, appeals from an order permitting the amendment of the answer, without terms. ■ The action was brought on for trial and a nonsuit granted at the close of the plaintiff’s ease. The order and judgment were reversed, with costs to the plaintiff to abide the event. (251 App. Div. 775.) Upon the trial a physician, called by plaintiff, stated during his cross-examination that the infection was some inches removed from the place from which the tooth was extracted, and expressed his opinion that the extraction had no relation to the infection. In the original answer there was an admission that the infection was seated at the place from which the tooth was extracted. Under the amended answer this is denied. The case has been tried once on the issues raised by the original answer and plaintiff successfully prosecuted an appeal from the judgment and order of nonsuit. If the issues are now to be changed by the defendant, it should be upon terms that he pay all costs up to the amendment, including witness fees, trial fee, and costs and disbursements of the original and present appeal. Order modified, on the law and facts, to permit the amendment upon terms, that defendant pay costs to the present time, including witness fees and the costs and disbursements of the original and the present appeal. Hill, P. J., Rhodes, Crapser, Bliss and Heffernan, JJ., concur.