Tribune Ass'n v. Smith , 8 Jones & S. 99 ( 1875 )

By the Court.—Freedman, J.

The only question presented by the appeal is whether the terms imposed as a condition of amendment were proper.

The amendment allowed, involved an entire change of the defense previously interposed and the interposition of a new defense.

It was shown by affidavit in opposition to the motion that the cause had been reached and called for trial many times on the day calendar ; that on each of said occasions the plaintiff was ready and anxious to proceed, but that the trial was invariably put off on defendant’s motion, and that in consequence of such postponements the plaintiff had lost several terms. Other suspicious circumstances were made to appear, and upon all the papers the good faith of the application stood seriously questioned.

Under these circumstances the court at special term not only had the power to require the defendant to pay, as a condition, all costs and disbursements of the plaintiff since the notice of trial, but the imposition ■ of such terms was eminently proper.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.