
    Henry E. Walton, Respondent, v. Margaret Mather, Appellant.
    (City Court of New York
    General Term,
    November, 1894.)
    Where an action has been once tried and the judgment reversed at the instance of the defendant, with costs to abide the event, the plaintiff cannot be permitted to amend the complaint except upon payment of all the costs to date.
    Appeal from an order allowing the plaintiff to amend the complaint.
    
      Dittenhoefer <& Gerber, .for appellant.
    
      Nathcm Lewis,.for respondent.
   Ehrlich, Oh. J.

It appears that this action was tried and a verdict rendered in favor of the plaintiff, which was on appeal reversed and a new trial ordered, with costs to abide the event. The action came np for a second trial, and, on account of some objection to the complaint, a juror was withdrawn, to the end that the plaintiff might apply at Special Term for leave to amend his complaint. The application was heard and granted, upon condition that the plaintiff pay to the defendant’s attorneys the sum of twenty dollars costs of motion. The defendant appeals from this order on the ground that the terms are inadequate.

The authorities seem to be uniform that where an action has been tried once and the judgment reversed at the instance of the defendant, with costs to abide the event, the plaintiff will not be permitted to amend his pleadings except on payment of all the costs to date. Ireland v. R. R. Co., 8 N. Y. St. Repr. 127 ; Cramer v. Lovejoy, 41 Hun, 581 ; Satterlee v. Claremont, Daily Reg. May 26, 1893 ; Manetta v. Naylor, 2 Law Bull. 65, 66. It follows, therefore, that the order appealed from must, in so far as it grants leave to amend upon payment of twenty dollars costs,” be reversed, with costs, and that such amendment be allowed on payment of all the costs to date, and in default of such payment that the application for leave to amend be denied.

Van Wtck, J., concurs.

Order reversed, with costs, and amendment allowed on payment of all costs to date.  