
    ROGERSON FRUIT & COLD STORAGE CO., Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    October 27, 1903.)
    Action by the Rogerson Fruit & Cold Storage Company against the New York Central & Hudson River Railroad Company.
   PER CURIAM.

Order reversed, with $10 costs and disbursements, and motion granted, upon payment by the defendant of all costs, except those upon this appeal, subsequent to the service of the original answer, with leave to the plaintiff to discontinue the action without costs. In case of such discontinuance, the plaintiff to recover costs as stated. Held that, the laches being sufficiently excused and it appearing that the plaintiff will not lose any right existing at the time of the commencement of the action by the proposed amendment, it must be regarded as in furtherance of justice to permit the defendant to set up the terms of the contract under which the goods were shipped.

STOVER, J., not voting.  