Opinion
March 5, 1909.
M.S. Guiterman, for the appellants.
Thomas H. Rothwell, for the respondent.
This action is brought by the assignee of a sheriff in the State of Wisconsin for the breach of an indemnity given to the sheriff orally in that State by an attorney representing the defendants as non-resident creditors. The action was tried on December 17, 1905, and resulted in a judgment in favor of the plaintiff. The complaint failed to allege that under the Wisconsin law the attorney had authority to indemnify the sheriff for non-resident clients. After verdict and motion for a new trial, the learned trial justice, on his own motion, directed an amendment of the complaint nunc pro tunc by the insertion of an allegation of the existence of such a law in that State. On appeal this court reversed the judgment and order allowing the amendment, on the ground that the original complaint did not state a good cause of action and that the granting of the amendment in the manner and at the time alleged was error. ( Audley v. Townsend, 126 App. Div. 431.) The order appealed from was granted after such reversal and permits the amendment, but imposes as terms the payment of seventy-five dollars costs only by the plaintiff to the defendants.
The rule is well settled that in the circumstances the court could only allow the amendment by the imposition as terms of the payment of all the costs and disbursements of the action before the date of the granting of the relief. In the first department this has been held in McEntyre v. Tucker ( 40 App. Div. 444); Fox v. Davidson (Id. 620); Rodgers v. Clement (58 id. 54); People ex rel. McDonald v. Clausen (61 id. 184); Tradesmen's Nat. Bank v. Curtis (63 id. 14); Thilemann v. Mayor of New York (71 id. 595); Lesser v. Gilbert Mfg. Co. (72 id. 147); Wilson v. Standard Asphalt Co. (81 id. 102); Lindblad v. Lynde (Id. 603); Coyle v. Davidson (92 id. 322); Kerrigan v. Peters (108 id. 292); Dunham v. Hastings Pavement Co. (109 id. 514); Palazzo v. Degnon-McLean Contracting Co. (115 id. 172); Herbert v. De Murias (Id. 453); Ward v. Terry Tench Construction Co. (118 id. 80). The same rule was laid down in the third department in the case of Town of Palatine v. Canajoharie Water Supply Co. ( 116 App. Div. 530), and in the fourth department in Bates v. Salt Springs Nat. Bank (43 id. 321); Northam v. Dutchess County Mut. Ins. Co. (94 id. 614) and Wood v. N.Y.C. H.R.R.R. Co. (100 id. 226). A similar rule has prevailed in this department, and was enforced, among other cases, in Meeks v. Meeks ( 79 App. Div. 49); Bruns v. Brooklyn Citizen (98 id. 316) and Rosenberg v. Feiering (124 id. 522).
We think the amendment in this case was proper and entirely within the discretion of the Special Term. The order should be modified by requiring as a condition of the amendment that the plaintiff pay to the defendants all the costs and disbursements of the action antecedent to the granting of the application and ten dollars costs of the application, and as the appeal is from the entire order, the order as modified should be affirmed, without costs.
WOODWARD, JENKS, RICH and MILLER, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs.