20 N.Y.S. 733 | N.Y. Sup. Ct. | 1892
The action in which the motion is made was brought in partition, and, after one amendment of plaintiff’s complaint, was brought on for trial, and resulted in a judgment in plaintiff’s favor, from which an appeal was taken to this general term, where it was reversed, and a new trial ordered, with costs to defendants to abide the event. 20 N. Y. Supp. 734. The right to amend the complaint upon the trial having been questioned in the opinion of the general term, the plaintiff moved at special term to again amend, which motion resulted in the making of the following order by Mr. Justice Andrews: “Ordered, that said motion be, and the same is hereby, granted,-and that plaintiff have leave to serve such second amended complfint on condition that within ten days after the adjustment by the clerk of the costs hereinafter mentioned, etc., the plaintiff pay to Francis C. Devlin, attorney, etc., and to Wm. H. Arnoux, attorney, etc., each a full bill of costs and disbursements to date, to be taxed by the clerk of this court. ” The clerk, upon the taxation, disallowed all the general term costs, and thereafter defendants moved for a retaxation, which was denied, and from such denial this appeal is taken.
It was no part of the clerk’s duty, any more than it was of the learned judge who heard the motion for retaxation, nor is it our duty, to determine the terms which should havé been imposed; the question being, what is the true construction of the judge’s order allowing the amendment, which has never been modified or appealed from? We think it reasonably free from doubt. It meant to award to the defendants exactly what it states,—“a full bill of costs and disbursements to date.” The judge had undoubted power, as a condition of granting the favor, to include the costs which by the general term were made to abide the event, because he had a right to consider whether the effect of the amendment was to make a new cause of action, and thus to conclude that the failure to serve a proper complaint -had caused the appellants the W'aste of time, labor, and expense incident to the preparation of a trial, the judgment thereon, and the subsequent appeal. Costs are so imposed as a condition for the amendment, and cannot be regarded as being a payment of the costs of the action; and the effect of compelling, as a condition, an amount of costs to be paid equal to those which by order of the general term were made to abide the event, in no way affects or overrides the disposition made by the general term of the appeal. In other words, the learned judge allowing the amendment did not attempt to change the direc