Desire R. Szakvary, Appellant, v. Haddorf Piano Company, Respondent

Desire R. Szakvary, Appellant, v. Haddorf Piano Company, Respondent. First Department, July 10, 1916. Practice — order granting leave to amend complaint on payment of costs—affirmance of such order—subsequent election by plaintiff not to amend—right to trial upon original complaint. Where the court holds that a complaint is insufficient, but instead of dismissing it permits the plaintiff to withdraw a juror with a view to moving at Special Term for leave to amend, and the plaintiff makes such a motion and is granted leave to amend on condition that he pay costs, and his appeal from the payment of such costs is unsuccessful, and he subsequently elects not to avail himself of the leave to amend, he is entitled to have the cause restored to the calendar for trial upon the original complaint. Appeal by the plaintiff, Desire E. Szakvary, from an order of the Supreme Court, made at the ¡New York Trial Term and entered in the office of the clerk of the county of New York on the 3d day of April, 1916, denying his motion to restore the cause to the trial calendar. Moses Cohen, for the appellant. for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The cause came on for trial in October, 1915, and the defendant moved to dismiss the complaint. The court held that the complaint was insufficient, but, instead of dismissing it, permitted plaintiff to withdraw a juror with a view to moving at Special Term for leave to amend. He did so move, and leave was given upon condition that he pay costs to date, which were subsequently taxed. Plaintiff then appealed to this court from so much of the order as imposed the payment of costs as a condition of amending. His appeal was unsuccessful and the order was affirmed, with ten dollars costs and disbursements. (172 App. Div. 909.) These he has paid. He now elects not to avail himself of the leave given him to amend his complaint, and seeks to have the cause restored to the calendar for trial upon the complaint as it originally stood. His motion to that effect was opposed and presumably denied, because he ha.s not paid the costs imposed as a condition of amending. We are of the opinion that the motion should have been granted. The payment of the costs in question was distinctly imposed, not absolutely, but as a condition of granting leave to amend the complaint. If plaintiff did not choose to accept the leave upon the terms prescribed it was open to him to refuse to amend, and if he did so the condition failed. . He is entitled, as we think, to bring the cause to trial in order that his complaint may be authoritatively passed upon. It is unfortunate and not conducive to good practice that plaintiff should have been allowed to speculate upon the terms that might be imposed if he sought to amend his complaint, hut that results from the form in which the order granting leave was made, and from the fact that no terms were imposed upon him as a condition of permitting him to withdraw a juror. The order appealed from must be reversed and the motion granted, but without costs in this court. Clarke, P. J., McLaughlin, Smith and Page, JJ., concurred. Order reversed, without costs, and motion granted.