Russo v. Lordi

69 Misc. 330, 125 N.Y.S. 412

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 15, 1910
• Status: Published

Opinion

Seabury, J.

This action is brought against the defendant Lordi as owner and the defendant Cantelmo .as contractor for work performed and materials furnished to the defendants. The defendants appeared in the action by.separate attorneys and their good faith in so doing is not questioned. When the action first came to trial the plaintiff’s motion to withdraw a juror and to amend his complaint was granted upon the payment of costs only to the defendant Lordi. Subsequently the plaintiff again asked leave to amend his complaint. This motion was granted upon the payment of costs to the defendant Cantelmo. The defendant Lordi now appeals from so much of the order as fails to make an -award of costs to him. The amended complaint made it necessary for both of the defendants to plead anew and to prepare for trial so as to meet the issue tendered by the 'amended complaint and should only have been granted upon costs being awarded to both of the defendants. Rowe v. Granger, 118 App. Div. 459.

Tbe order is modified by awarding a separate bill of costs to each' defendant and, as modified, is affirmed, with ten dollars costs and disbursements to the appellant.

Page and Bijur, JJ., concur.

Order modified and, as modified, affirmed.