
    WOOLSEY v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    December 3, 1908.)
    Appeal and Ebror (§ 1201) — Reversal — Proceedings in Lower Court— Amendment op Pleadings—Terms.
    Where a judgment for plaintiff was reversed, because it was not sustained by the allegations of the complaint, a motion to amend the complaint should be allowed only on payment of all costs accruing after service of the answer.
    [Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 1201.*]
    Appeal from Special Term, Kings County.
    Action by Lizzie Woolsey against the Brooklyn Heights Railroad Company. From an order allowing an amendment to the complaint, defendant appealed.
    Affirmed, as modified.
    See, also, 123 App. Div. 631, 108 N. Y. Supp. 16.
    Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
    Francis R. Stoddard, Jr., for appellant.
    Adolph Ruger, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   GAYNOR, J.

A judgment for the plaintiff being reversed, she then moved for leave to amend her complaint by a new allegation of negligence, as the ground of reversal was such that recovery could not be had on the original allegation of negligence. The motion was granted on payment of $30. The terms should have been payment of all costs after service of the answer. McEntyre v. Tucker, 40 App. Div. 444, 58 N. Y. Supp. 146; Rosenberg v. Feiering, 124 App. Div. 522, 108 N. Y. Supp. 941.

The order must be modified accordingly.

Order modified, in accordance with the opinion of GAYNOR, J., and, as so modified, affirmed, without costs. All concur.  