Leventritt, J.
The plaintiffs instituted this action to recover damages alleged to have been sustained by the collapse of the premises Ho. 65 East Eighth street, in this city, of which they were tenants. They attributed their loss to the negligence of the defendant in failing, while excavating on adjoining property, to properly shore up the walls of the *346building occupied by the plaintiffs. The case was originally tried and presented to the jury as one arising solely from a violation of or noncompliance with the provisions of section 22 of the Building Law, and upon the theory that the plaintiffs were interested in the observance of the duty imposed by the statute, and were therefore entitled to enforce a claim for damages for its violation. A verdict in favor of the plaintiffs has been reversed on the ground that the statute referred to doés not operate in favor of a tenant. Paltey v. Egan, 122 App. Div. 512. In the course of the opinion the court say: “ The fall of the building was caused by some negligence of Egan or the contractor. The front of building Ho. 65 had been taken out and in the progress of the work of alteration of the buildings a mass of debris or material was deposited upon one of the floors of the building Ho. 65, and a supporting beam was withdrawn from the wall. It was undoubtedly the superincumbent weight of this mass of material, in connection with the general weakening of the structure, that caused the disaster. * * * We, therefore, are of the .opinion,” continue the court, “ that this action was brought under a misconception of the plaintiffs’ proper rights and remedy, and that the judgment and order must be reversed and a new trial ordered. We do not intend hereby in any way to decide or intimate that the plaintiffs may not maintain a properly constructed action against the defendant Egan for damages sustained by reason of the collapse of the building in which their merchandise was stored.” The criticism of the learned Appellate Division extends, therefore, to the bringing of the action, which it was said was commenced “ under a misconception of the plaintiffs’ proper rights and remedy.” The plaintiffs now move for leave to serve an amended complaint in which they have pleaded, in addition to the violation of the Building Law, the breach of a covenant in the lease that the plaintiffs should peaceably and quietly enjoy the demised premises, and that the defendant would not do or cause to be done any act which would interfere with such enjoyment; that the defendant negligently caused the walls and foundations thereof to be and become weakened and deprived of lateral support, ancj *347while in that condition to he overweighted. The sole question presented is that of terms. The plaintiffs have pleaded and tried their action on the theory of statutory liability. The defendants have been compelled to defend on the lines defined by the plaintiffs, and the learned Appellate Division has held that there can be no recovery on that cause of action. Therefore, a retrial on the former theory would result in a dismissal of the complaint. The plaintiffs now seek to present a new issue and to retry the case on a different theory. Before they will be permitted to do so the defendant should be placed in the same position as to costs as if the action had been discontinued and a new one commenced. Thilemann v. Mayor, 71 App. Div. 595. As was said in Bates v. Salt Springs Nat. Bank, 43 App. Div. 321: “The defendants have been put to the costs in the effort to vindicate their position, and if the plaintiff desires to try another cause of action, then he should first make the defendants whole for what they have already incurred, to the extent of the taxable costs and disbursements.” Lindblad v. Lynde, 81 App. Div. 603. I do not subscribe to the view that the pro-2>osed amendment is but an amplification of the allegations of the original complaint. The motion will be granted upon payment within ten days of all the taxable costs of the action to date. Settle order on notice.
Motion granted upon payment of all taxable costs to date.