
    Harriet A. Brady et al., Ex’rs, Resp’ts, v. Patrick Cassidy et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    ■1. Pleading—Amended complaint.
    It is within the discretion of the court to allow service of an amended complaint although its effect be to increase the amount demanded originally.
    2. Same—Terms upon which amendment is granted.
    An appeal in a case was decided by the court of appeals in 1887 in favor of defendants, and in 1888, upon a second trial, the complaint was held defective, and plaintiff was allowed to amend on payment of $300 costs. Held, that as a condition of such amendment, in addition to the above penalty, the plaintiffs must stipulate that in case of a recovery they would waive the costs of all former trials and appeals. '
    Appeal from an order made at special term allowing the plaintiffs to serve an amended complaint
    
      Henry A. Forster, for resp’ts; Otto Horwitz, for app’lts.
   Bischoff, J.

Plaintiffs, as the executrix, etc., of Alfred Brady, deceased, brought this action against the defendants to recover upwards of $11,000 for a stock of plumber’s castings alleged to have been sold by plaintiffs to defendants. The action was commenced in August, 1883, and first tried in 1885, and the judgment then recovered by plaintiffs was reversed by the court of appeals for errors in the rulings of the trial justice. The reversal occurred in January, 1887, and in March, 1888, the cause was again reached for trial. On thé second trial the justice intimated that plaintiffs had failed to prove the cause of action set forth in the complaint, and permitted counsel to withdraw a juror to enable him to apply at special term for leave to serve an amended complaint. Such application was made, and plaintiffs were required, as a condition to the granting of leave to serve the amended complaint, to pay the costs of the action, not exceeding the sum of $300.

From the order granting such leave the defendants have appealed, urging substantially three grounds for its reversal: First, that the order should have been denied altogether; second, that plaintiffs should not have been permitted to increase the amount of the demand in the original complaint; and third, that severer terms should have been imposed upon plaintiffs.

The only change contemplated by the amended complaint is to permit plaintiffs to demand recovery for merchandise actually delivered under the contract of sale entered into by and between the parties, instead of a recovery for the sum agreed to be paid by the defendants upon full and complete "performance of the contract of sale by the plaintiffs, and it was therefore within the discretion of the court at special term to grant the application for leave to serve it, Hatch v. The Central National Bank, 78 N. Y., 487 ; Eighmie v. Taylor, 39 Hun, 366; Beck v. Allison, 56 N. Y., 366, 373; Code of Civil Procedure, § 723; Rumsey’s Practice, vol. 1, p. 284, § 2, and it is no objection to the granting of leave to serve an amended complaint that the sum originally demanded is thereby increased. Reed v. The Mayor, etc., 97 N. Y., 620.

The order appealed from thus appearing to be discretionary, we ought not to interfere unless the discretion appears to have been abused by an unjust disregard of defendant’s rights. After a careful examination of all the papers and testimony presented on this appeal, we cannot say that such an abuse has been shown to exist. The great delay which plaintiffs permitted to intervene between the decision of the court of appeals and the application for leave to serve an amended complaint, and the fact that plaintiffs proceeded with a second trial upon the original complaint are circumstances which should have been considered by the court in concluding to grant the relief asked for. That these circumstances were properly considered is shown, by the imposition upon plaintiffs of all the costs of this action, not exceeding $300, certainly terms much severer than those ordinarily imposed.

We think that as a further penalty, and because the former proceedings were necessarily futile because of plaintiffs’ defective pleading, they should also have been required to stipulate that in the event of plaintiffs’ successful issue in this action they will not tax the costs of the former trials and appeals had herein, but we cannot agree with the contention of the able counsel for defendants that, because the defendants have already been subjected to great expense in resisting the claim in suit, the plaintiffs should be required to reimburse them to an extent greater than the payment of the costs imposed.

Plaintiffs are prosecuting this action in a fiduciary capacity and their good faith is not in any way impugned. The estate which they represent has for more than eight years been deprived of all compensation for the merchandise actually delivered to defendants and they also have been subjected to much vexation and expense in their efforts to recover. These circumstances appeal as much to the leniency of the court as the suffering of considerable expense by the defendants in resisting every part of the claim in suit call upon it to impose upon the plaintiffs as a condition to the granting of the relief terms far in excess of those usually imposed upon like applications.

The order appealed from should be modified so as to require plaintiffs to stipulate that they will waive all costs of the former trials and appeals herein in the event of a recovery against the defendants, and as modified the order should be affirmed, but without costs to either party.

Allen and Pryor, JJ., concur.  