Stephen Farrelly, as Ancillary Receiver of the City Trust, Safe Deposit and Surety Company of Philadelphia, Respondent, v. Caroline A. Schaettler, as Executrix, etc., of Ferdinand Schaettler, Deceased, Appellant

Stephen Farrelly, as Ancillary Receiver of the City Trust, Safe Deposit and Surety Company of Philadelphia, Respondent, v. Caroline A. Schaettler, as Executrix, etc., of Ferdinand Schaettler, Deceased, Appellant. First Department, February 7, 1908. Practice — amendment .of complaint — costs. After the reversal of a judgment against an executrix, as such, an amendment of the complaint so as to charge her personally, should he conditioned on the ' payment of costs to date of the amendment, except costs before trial. Appeal by the defendant, Caroline A. Schaettlei'j as executrix, etc., from an order' of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Eew York on the 20th day of December, 1907, granting the plaintiff’s motion to amend the summons and complaint herein by striking.from the title of the action the words “as executrix of the last will and testament of Ferdinand Schaettler, deceased,” upon the payment of seventy-five dollars costs. A judgment against the defendant as executrix was reversed upon an appeal to the Appellate Division and a néw trial ordered. (See. Farrelly v. Sohaettler, 121 App. Div. 678.) F. JR. JMJinrath, for the appellant.- JFrederic J. Swift, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The order should be modified so as to allow the defendant costs of the action to the date of the amendment, except costs before trial, as a condition for the allowance of the amendment applied, for, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Present — Patterson, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order modified as directed in opinion, and as so modified affirmed, with costs to the appellant. Settle order on notice.