
    Patrick B. McEntyre, Respondent, v. Clarence Tucker, Appellant.
    
      Amendment of a complaint — what condition as to. payment of costs should he imposed.
    Where a judgment dismissing the plaintiff’s complaint is reversed upon appeal, with costs to the plaintiff to abide the event, and a judgment recovered by the-plaintiff upon the second trial is reversed upon appeal, with costs to the-defendant to abide the final event, upon the ground that, under the pleadings, the plaintiff could not recover, the plaintiff, as a condition of being permitted, to amend his complaint, should be required to pay the defendant his costs and disbursements for all proceedings subsequent to the service of the complaint, and also the costs and disbursements of appeal which were given to him. to-abide the event of the action.
    -Appeal by the defendant, Clarence Tucker, from 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 llth ■day of March, 1899, allowing the plaintiff to serve an amended complaint upon terms.
    
      Arthur J. Baldwin, for the appellant.
    
      Henry G. Atwater, for the respondent.
   Van Brunt, P. J.:

This action was upon a building contract, and was originally brought in the Court of Common Pleas in 1882. A trial was had before the referee appointed by the court and a judgment was entered dismissing the complaint. Upon appeal this judgment was reversed, with costs to the plaintiff to abide the event. A new trial being had, the plaintiff recovered. Upon appeal this judgment was reversed upon the ground that, under the pleadings, the plaintiff could not recover, and costs were awarded to the •defendant to abide the final event. The plaintiff, finding that he could not succeed as the pleadings stand at present, moved the court for leave to amend in a material particular. This motion was granted upon the payment of fifty dollars and ten dollars costs of motion. The defendant thereupon appealed from such order.

It seems to us that the terms upon which the motion was granted were entirely inadequate. It is conceded by the motion that the plaintiff cannot recover in the present form of action. The defendant was, therefore, justified in defending ; and for the costs and disbursements to which he has been put in the establishment of a successful defense, he is entitled to be reimbursed.

It seems to us, therefore, that he is entitled to recover his costs and disbursements for all proceedings subsequent to the service of the complaint, and also to recover the costs and disbursements of appeal where such costs were given to him to abide the event of" the action.

The order should be modified to this extent, and as modified affirmed, without costs.

Barrett, Rumsey and Patterson, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  