Ireland v. Metropolitan Elevated Railway Co. , 8 N.Y. St. Rep. 127 ( 1887 )

Per Curiam

This action has been tried once and a judgment entered in favor of the plaintiff.

From that judgment the defendant appealed and on the appeal a new trial was ordered with costs to the appellant, to abide the event.

After the decision of the general term the case was brought on for trial before a judge and a jury when the defendant objected that the complaint w-as insufficient because it stated only a cause of action for injury to the fee .and no such action would lie.

The judge before whom the case then was, sustained the •objection, but gave the plaintiff leave to withdraw a juror ánd apply to the special term for relief. The plaintiff availed himself of the leave given to him by the trial judge .and applied at special term for the relief suggested.

The judge below allowed him to amend his complaint upon payment of twenty dollars costs.

We cannot say that the discretion of the judge was unwisely exercised in allowing an amendment, but we are of the opinion that the terms on which the amendment was allowed are not all that should have been given by the judge at special term.

It may be that this amendment will result in a verdict in favor of the respondent in which event the appellant will lose the costs of an appeal in which he was successful.

We, therefore, amend the order of the court below by striking out the words, “twenty dollars costs,” and substituting in the place thereof the words, “ the costs awarded to the appellant on the appeal and ten dollars, costs of the motion,” and as so modified, the order appealed from is affirmed, without costs.