
    Thomas Purcell, Respondent, v. Hoffman House, Appellant, Impleaded with Michael Fogarty, Defendant.
    Second Department,
    March 19, 1909.
    Practice — amendment of pleading after former trial — conditions.
    Where after one trial of an action to recover for negligence and after the withdrawal of a juror by the plaintiff on a second trial, because the court intimated that it would refuse to allow evidence of certain negligence not charged in the complaint, the plaintiff moves for leave to amend by alleging additional grounds of negligence, the leave should be conditioned on the payment of all costs and disbursements of the action to the date of the amendment. ■
    Appeal by the defendant, the Hoffman House, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of February, 1908, as imposes as a condition of permitting an amendment to the complaint herein the payment of only ten dollars costs.
    
      Pierre M. Brown, for the appellant.
    
      J. F. Carew [Thomas F. Magner with him on the brief], for the respondent.
   Hirschberg, P. J.:

The action is brought to recover damages for negligence. The plaintiff was engaged at the time of the accident as an employee of the defendant in the hotel in the borough of Manhattan known as the Hoffman House. He was an oiler, and was working with a boiler maker who was engaged under contract with the defendant in repairing a boiler or fire box in the hotel. He was directed by the engineer under whom he was employed to assist the employees of the contractor, and, while so engaged, a torch filled with gasolene or some some other explosive and inflammable substance which was being used by the contractor’s employees exploded, inflicting the injuries of which the plaintiff complains. In the original complaint the allegation of negligence' was alleged to be the giving to the plaintiff and those engaged with him in the work improper, defective, weak and dangerous tools and appliances liable to explode; in sending him and the others into a place where it was unsafe and dangerous to have such tools, and where the same were liable to explode, and “ otherwise through the negligence of the defendants.” The amendment allowed permits the plaintiff to add as a charge of negligence the omission of the defendant “in not giving this .plaintiff and those engaged with him proper instruction .as to the use of said tools, in giving them improper instructions, in exposing them to danger of explosion without warning them .thereof.”

■ The action was brought in the summer of 1900, and was first tried in 1902. A verdict was then rendered in favor of the plaintiff, but the judgment entered thereon was reversed by this court. (Purcell v. Hoffman House, 97 App. Div. 307.) The case was again brought on for trial in December, 1906. During the progress of the second trial the plaintiff’s counsel, while arguing the question as to- the instructions which were given to his. client at the time he was injured, was met by an objection from the court that the giving of improper instructions or the lack of proper instructions was not sufficiently pleaded in the complaint, and that the evidence as to the same would be excluded. The plaintiff’s counsel thereupon applied for permission to withdraw a juror, in order to have an opportunity to apply at Special Term for leave to amend, which was granted, the plaintiff being ordered to pay thirty dollars trial fee; and more than a year afterwards the application was made at Special Term for leave to serve the amended complaint, which resulted in the order now under review, and which order was granted permitting the amendment desired on the payment of ten dollars costs only. The limitation of the costs at Special Term was based on the assumption.that the theory of the first trial and appeal was that- tlie plaintiff’s assertion of negligence included the absence of proper and adequate instructions, but I do not think the plaintiff is at liberty to urge that view, inasmuch as he acquiesced in the ruling of the court on the second trial, and must be .assumed to desire the amendment as a necessary safeguard and precaution before proceeding to the third trial.

The rule is well settled that, in the circumstances disclosed by the record herein, the court may not amend a complaint after trial and appeal without imposing upon the applicant as a condition the payment of the costs and disbursements of the action to the date of the granting of the relief sought. (See authorities cited in the opinion in Audley v. Townsend, 131 App. Div. 79.)

The order, in so far as appealed from, should be modified by requiring, as a condition of the amendment, that the plaintiff pay to the defendant all the costs and disbursements of the action to the date of the order, and ten dollars, costs of the motion, less the thirty dollars, trial fee heretofore imposed, if the same has been paid, and as modified affirmed, with ten dollars, costs and disbursements.

Woodward, Jenks, Gaynor and Miller, JJ., concurred.

Order, in so far as appealed from, modified in accordance with opinion, and as modified affirmed, with ten dollars costs and disbursements.  