Richardson & Morgan Co. v. Gudewill , 37 Misc. 858 ( 1902 )

Delehanty, J.

We think the orders appealed from should' he affirmed. There have been two jury trials herein, and in each instance the verdict has been for the plaintiff. True, the judgments entered thereon have been reversed upon appeal, but solely upon technical grounds, and not upon the merits.

The proposed amended and supplemental answer is sought to be interposed, as claimed by appellant, to correct an error committed by the former attorney for the defendant, in the drafting of the original pleading. It now seeks to set up a counterclaim for six hundred dollars damages, and, if interposed, will give to the defendant, a new issue to present to the jury.

Under the circumstances, we cannot say that there has been, in the imposition of terms granting same, such an abuse of judicial discretion as calls for action upon our part. The trend of authority is to the effect that where the proposed amendment raises an issue substantially different to that litigated upon the trial, such terms are imposed as will indemnify the other side for hi&'taxable costs. Ferris v. Hard, 6 Misc. Rep. 359; 21 N. Y. Supp. 222, 225; Bates v. Salt Springs National Bank, 43 App. Div. 321.

Nothing more than that has been done in this case. The ingenious effort of counsel for appellant to. distinguish the Bates authority from the one at bar is unavailing. After all has been said, the admitted fact stands prominently forth that thus far in this protracted litigation the defendant has been bested upon the merits, and, unless some new tack is devised, judgment absolute will finally go against him. The amended answer is his “ anchor to windward ” and he should pay the regulation terms for casting it.

The orders appealed from are correct, and are, therefore affirmed, with costs.

McCarthy, J., concurs.

Orders affirmed, with costs.