Sleeman v. Hotchkiss

16 N.Y.S. 308, 41 N.Y. St. Rep. 173, 1891 N.Y. Misc. LEXIS 418

Opinion

Per Curiam.

The complaint here was never dismissed generally. It was dismissed at special term only so far as it prayed for equitable relief. Thereafter the action was tried at circuit, and the plaintiff was permitted to withdraw a juror on certain conditions, namely, the payment of costs, and the making of a motion for leave to amend within 20 days. The costs were paid, and the motion to amend was duly made and denied. That left the action as it stood when the juror was withdrawn, and the plaintiff then had a right to go back to circuit, and retry his case as best he could. Otherwise the favor originally granted to the plaintiff at circuit would cost him his right to review; for if the juror had not been withdrawn the complaint would have been dismissed, and the plaintiff could then have appealed. He should be no worse off by reason of the refusal to permit him to amend. The order should be reversed, with $10 costs and disbursements, and the cause set down for trial on the pleadings as they stand.