Havemeyer v. Havemeyer

12 Jones & S. 170

Opinion

By the Court.—Sedgwick, J.

The court below granted an order that the defendants have leave to serve an amended answer “ upon payment by the defendants to the plaintiffs of the costs of the action to the present time.” The appeal is from so much of the order as imposes the condition of the payment of the costs of a trial already had, and of an appeal to the general term, which reversed the verdict in favor of plaintiff and directed that the defendants should have costs of the appeal to abide the event. This assumes that the matters objected to were implied in the phrase of the order “costs of the action to the present time.” The better construction is, however, such costs of the trial as would go to the plaintiff in case there had been a termination favorable to him at the time of the order giving leave to amend. In such case, the only question that could arise, would be upon an appeal from taxation which gave more costs to the plaintiff than he would be entitled to if he had recovered. For there can be no question that upon an application to substantially change a defense, the court has the power to impose all the costs that a plaintiff would be entitled to have in the action.

But be this so or not, an appeal will not lie from a condition merely of allowing service of an amended answer. In such case, the opposite party would be bound by the part of the order nob appealed from, and is not in a position to urge that if it be without the powers of the court to impose the conditions, then leave should not be given to serve an amended answer. Yet the whole importance of the condition is, its relation to the power to be granted. There would be no error prejudicial to the defendant, if on all the facts, such a condition was imposed in a case where leave to serve the amended answer should have been absolutely denied. And any court that imposes the condition or changes one already imposed, should have the power to refuse leave (Tribune Association v. Smith, 40 N. Y. Superior Ct. 81). Therefore the question raised should have been upon an appeal from the whole order, so that there might be, here or below, a proper order made.

Order appealed from affirmed with $10 costs to respondent.

Sanford, J., concurred.