
    Edward T. Carpenter and Ernest E. Carpenter, Respondents, v. Atlas Improvement Company, Appellant.
    Second Department,
    April 30, 1909.
    Pleading — amendment after trial — terms.
    After a judgment for the plaintiff has been reversed because of the admission of evidence incompetent under the pleadings, a subsequent amendment making the evidence admissible should be conditioned upon the payment of costs and disbursements in the action to the date of the order, with costs of motion..
    Appeal by the defendant, the Atlas Improvement Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on. the 30th day of Rovemben, 1908;, granting the plaintiffs’ motion for leave to amend the complaint.
    
      Charles Adkins Baker [H. Aaron with him on the brief], for the appellant.
    
      Henry T. Dykman, for the respondents.
   Rich, J.:

In 1905 the plaintiffs commenced this action to recover commissions for the sale of real property. The complaint alleges an employment to sell a certain plot of land situated on the córner" of Railroad avenue and Spring street, in the village of White Plains.” The only averment of performance entitling them to commissions is contained in the third subdivision" of the complaint in the following language: “Third: That "plaintiffs procured three purchasers for parts of said premises willing and able to purchase and furnished their names and addresses to the defendant.” The defendant, after waiting a reasonable-time, independently of plaintiffs, sold and conveyed two parcels of the plot "to purchasers whose names were given to it by the plaintiffs. The referee before whom the action was tried found in favor of plaintiffs upon the theory that the original contract had been changed or modified to an extent rendering a recovery permissible, and judgment . was accordingly entered for commissions upon the sales prices of the two parcels sold, which judgment was, on appeal, reversed by this court upon the ground that the complaint averred an employment to sell the entire property; that there had been no modification or change of the contract, and plaintiffs could not recover, upon proof of partial performance (123 App. Div. 706). In October following the case was moved for trial, and plaintiffs offered evidence tending to show a complete performance of the contract; this evidence was objected to as being incompetent under' the pleadings. A juror was withdrawn and a motion was subsequently made at Special Term to amend the complaint by striking out said third averment and inserting in its place the allegation: “ That plaintiffs had procured purchasers for the whole of said premises, willing and able to purchase, and were prevented from doing so by the action of the defendant.” The motion was granted without terms. The case presented is within the rule uniformly settled that such an amendment should not be allowed except upon terms. (Bates v. Salt Springs National Bank, 43 App. Div. 321; Woolsey v. Brooklyn Heights R. R. Co., 129 id. 410; Palazzo v. Degnon-McLean Contracting Co., 115 id. 172; Town of Palatine v. Canajoharie Water Supply Co., 116 id. 530; Farrelly v. Schaettler, 124 id. 120 ; Rosenberg v. Feiering, Id. 522.)

' The order should be modified by granting leave to amend only upon condition that the plaintiffs pay the costs and disbursements in the action to the date of the order, with ten dollars costs of the motion, and as so modified affirmed, without costs.

Hirschberg, P. J., Gaynor, Burr and Miller, JJ., concurred.

Order modified by imposing the costs and disbursements in the action to the date of the order, with ten dollars costs of the motion, as the condition of granting the leave to amend, and as so modified order affirmed, without costs.  