Edward R. Dunham, Respondent, v. The Hastings Pavement Company, Appellant

Edward R. Dunham, Respondent, v. The Hastings Pavement Company, Appellant. First Department, December, 1905. Pleading — amendment of complaint allowed by order, It is proper for the court to allow the service of an amended complaint which changes the action from". One to recover on a contract to one to recover for a breach thereof. But "such amendment should be on the condition that plaintiff pay costs to date of the amendment. Appeal by the defendant, The Hastings Pavement Company, frorn an order of the Supreme Court,. made at the. Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of October, 1905, allowing the plaintiff tó serve an amended complaint. - Austen G. Fox, .for the appellant. Samuel Ontermyer, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: I think the court below was justified in allowing the plaintiff to serve an amended- complaint. While the form of the second causé of action is changed from one .to recover under the contract to a cause of action to recover for a breach of the same contract* the basis. of' the action is Upon the contract, and tile liability of the defendant depends upon its obligation thereunder. It having been determined.that the right of the plaintiff to recover under the second cause of action' must, be based upon a breach bf the contract, by the defendant, it was proper for the court to allow ail amendment to. the complaint so as to present the question at issue. The court had power to make such an amendment whether, strictly speaking, a new cause of action was or was not alleged. We think that such an amendment, however, should only he allowed upon condition that the plaintiff should pay all the costs of the action up to the date of • the amendment; and the order appealed from should be modified, requiring the payment of such costs as a condition for allowing the plaintiff to serve the amended complaint. The order appealed from should, therefore, be modified accord-, ingly, and as modified affirmed, without costs of this appeal. . O’Brien, P. J., Patterson, Clarke and Houghton, JJ., .concurred. Order modified as directed in opinion, and as modified affirmed, without costs.