
    McCABE v. CRUIKSHANK.
    (Circuit Court, S. D. New York.
    January 11, 1901.)
    Pl.BADIVG— DkMURRBH— COSTS.
    Where demurrer to answer is carried back to the complaint, and plaintiff asks leave to amend, taxable costs of the demurrer on leave to amend fall on plaintiff.
    Percy Jackson, for plaintiff.
    H. B. Closson, for defendant.
   WHEELER, District Judge.

The plaintiff is the one who needs to and does ask leave to amend, and who, according to the decision made, was first at fault in pleading. The defendant has no occasion for such leave. If the plaintiff does not amend according to the order, as settled otherwise, the defendant will have final judgment in this cause, although not on the merits. If the plaintiff does amend, the defendant will be entitled to answer the new complaint, under the rules of procedure. Under these circumstances the taxable costs of the demurrer on the leave to amend must fall upon the plaintiff. Order settled accordingly.  