
    Bridget O’Beirne, Plaintiff, v. George T. Kelly, Defendant.
    (Supreme Court, New York Special Term,
    June, 1910.)
    Pleading — Amendments — Amendments by leave of court — Conditions on granting leave to amend — Payment of costs.
    Where plaintiff .at the trial, after a motion by the defendant to dismiss the complaint on the ground it does not state facts sufficient to constitute a cause of action, is permitted to withdraw a juror upon payment of a trial fee in order to move at-Special Term to amend Ms pleading, the costs to he imposed as a condition' of granting leave to amend are not necessarily all costs to date hut are in the discretion of the court and should he fixed in view of the amount involved and the costs already paid.
    Motion for leave to serve an amended complaint.
    Pheil & Bird, for plaintiff.
    Max D. Steuer, for defendant.
   Erlanger, J.

When this cause was before me for trial, and before any proof was taken, the defendant moved to dismiss the complaint. Leave was thereupon granted to withdraw a juror upon payment of thirty dollars in order to allow the plaintiff to move at Special Term to serve an amended complaint. These costs have since been paid. The defendant insists that the terms to be imposed as a condition of granting the amendment are costs to date. This seems to be the rule in this department. Palazzo v. Degnon-MacLean Const. Co., 115 App. Div. 172; Kerrigan v. Peters, 108 id. 292. I do not think, however, that it was intended by these and kindred cases to deprive the court of all discretion, and that such terms were to be imposed at all events in every case. But $375 is sought to be recovered from the defendant, and the costs to date would be nearly twenty-five per cent, of the total claim. In my view this would not only be a hardship, but an injustice as well. After all, the law should not exact too great a penalty as & condition of granting justice, and in the circumstances, in view of the amount already paid, I think ten dollars costs of motion should suffice. Motion granted upon the payment of such costs.

Settle order on notice.  