125 N.Y.S. 1139 | N.Y. App. Div. | 1910
The order appealed from should be modified by requiring the defendants as a condition of serving the amended answer to pay full costs of action to date and ten dollars costs of opposing the motion, and upon the further condition that within thirty days after entry of order hereon, the plaintiff, if he so elect, may discontinue the action without costs to either party, and further that'if the amended answer is served the case shall retain its position upon the calendar and be tried when reached. As so modified the order should be affirmed, without costs of appeal to either party. Present — Ingraham, P. J., Clarke, Scott, Miller and Dowling, JJ. Order modified as indicated in opinion and as modified affirmed, without costs. Settle order on notice.
