Allaben v. Wakeman

10 Abb. Pr. 162

Opinion

By the Court.

Footnotes

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*—Balcom, J.

The order authorizing the plaintiff to amend the summons and complaint, as used, deprived the defendant of the right to answer a cause of action, for which judgment has been entered against him for $66.82. It affects a substantial right, and is, therefore, repealable. The amendments brought a new and distinct cause of action into the complaint, which was in no way connected with either cause of action set out in the original complaint. The order should not have been granted, except upon the condition that the plaintiff stipulated to set aside the report of the referee, and vacate the order of reference, with costs to abide the event of the action; and then it should have provided for the service of a copy of the amended summons and complaint on the defendant, and given him twenty days after such service to demur to or answer the amended complaint. If all the facts in the case had been presented to me on the motion for the order, as they appeared before the referee, I should not have granted the order. To say the least that the case justifies, the order was improvidently granted. It should be modified in conformity with the foregoing views. And as the plaintiff obtains a favor under it, and the defendant must be put to the trouble of answering the amended complaint, the plaintiff must pay $10 costs of the appeal from the order. I speak on the question of costs in the same manner in which I would if the order appealed from had been made at a special term, held by another judge. The plaintiff took the risk when he obtained the order, of a change of my opinion on the appeal, as well as of adverse views of my brethren.

The order must be modified in conformity with the foregoing opinion, and the plaintiff must pay the defendant $10 costs of the appeal from the order.

Decision accordingly.

Present, Mason, Balcom, and Campbell, JJ.