Dryer v. Brown , 24 Abb. N. Cas. 59 ( 1889 )

Williams, J.

If this was in fact an action, and not a reference under the statute of a disputed claim against an estate, the rule as to costs would then be clear, and I should have no question as to the terms to be imposed as a condition of the proposed amendment of the answer. The difficulty arises out of the peculiar terms of the stipulation entered into between the parties, which seems to make the case an action as to everything excepting costs, and to leave the question of costs to be determined as though the case were still a reference under the statute ; and in this condition of things it is not quite clear what the effect of the decision by the General Term as to costs is—what is meant by the words, “ costs to abide event.” Whether to abide event means to abide the final direction by the court as to costs, or the final result as to the recovery of the claim. By reason of this uncertainty resulting from the stipulation of the parties, I do not think the amendment proposed should be allowed without clearly protecting plaintiff. This defense might have been alleged in the defendant’s answer when originally made. If the stipulation had not been made, the defense could have been urged without a formal statement of it in a pleading. When the parties made the stipulation they evidently, for some unaccountable purpose, saw fit to change the nature of the casé and provide the .issues should be made up by pleadings with as much formality as in an action. Therefore it is very likely necessary this defense should be in the answer, in order to be urged by the defendant. It is not quite apparent to me why this defense was not originally put in the answer. I should think it was not then understood to be available, by reason of payments endorsed upon the notes which were not, perhaps, upon the trial, proved to have been made, though endorsed. While I am inclined to allow the amendment to be made, I think I should not permit it except upon the same terms I would impose if the rule as to costs in an action was fully applicable to the case. Such terms would be, all costs and disbursements, as in an action, from the commencement of the first trial, until the present time, including $10 costs of this motion. These costs should be paid as a condition of being allowed to amend, and within twenty days from the date of the service •of a copy of the order with notice of its entry.

The note upon which plaintiff’s claim is founded, should, ■at a convenient time before the new trial begins, be deposited with the county clerk, or some one agreed upon by the parties, so the defendant can examine them and have them •examined by his witnesses. An order to this effect should be made. If the counsel cannot agree upon its terms, I will have to settle its form myself.

It does not seem to me the court should order any dis •covery as to the letters written by the deceased, in custody of the plaintiff (41 Hun, 603 ; 43 Id. 95).

An order in accordance with the suggestions herein made will be proposed, and agreed upon by counsel as to form • •and submitted to me for signature.