Louise Diebold, Respondent, v. Anna Walter and Emilie Lampe, Appellants

Louise Diebold, Respondent, v. Anna Walter and Emilie Lampe, Appellants. Costs — imposed where a juror is withdrawn and the plaintiff is allowed to amend his complaint—time to answer — cause not restored to the day calendan'. On the trial of an action before a jury the complaint was found to be defective, and the plaintiff was allowed to' withdraw a juror in order to allow him to amend his complaint. The plaintiff thereafter moved for leave to serve an amended complaint, by which he sought to recover upon a different theory and upon different facts than those set up in the original complaint. Meld, that, as a condition of being permitted to serve the amended complaint, the the plaintiff should be required to pay the defendant ten dollars costs of the motion and á trial fee; That the defendant should be allowed twenty days within which to serve his answer, and that the cause should take its regular place on the general calendar and not be restored to the day calendar. Appeal by the defendants, Anna Walter and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25 th day of March, 1903, as permits the service of an amended complaint upon payment to the defendants of ten dollars costs, requires the defendants to answer within five days, and provides for the restoration of the case to the day calendar. Alvin C. Cass, for the appellants. Max Moses, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: As the case had been called for trial on the original complaint and this was found defective, and the learned judge thereupon permitted the withdrawal of a juror to the end that the plaintiff might move for leave to serve an amended complaint, we think that the terms imposed in granting the motion, namely, that only ten dollars costs of the motion be paid by the plaintiff; that the defendants — who were not in fault ■—■ should serve an answer in five days, thus depriving them of the time allowed by the Code of Civil Procedure to answer or demur, and that against their objection the case should be restored to its place on the day calendar, were too lenient to the plaintiff and boro too harshly on the defendants. By the amendment, which in effect states a new cause of action, the plaintiff is enabled to seek a recovery upon a different theory based on facts not included in the original complaint. The defendants having been obliged to prepare and attend' one trial, we think that the most favorable view to the plaintiff upon the facts would be to require her, in addition to the ten dollars costs of motion, to pay a trial fee and to allow the defendants twenty days in which to answer the amended complaint; the case, upon service of the answer, to take its regular place on the calendar and not to be restored to the day calendar. In these respects, we think, the order should be modified, and as. so modified affirmed, with ten dollars costs and disbursements to. the appellants. Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Laughlin, JJ. Order modified as directed in opinion, and as modified affirmed^ with ten dollars costs and disbursements to appellants.