
    Alex Klinkowstein, Respondent, v. Samuel . Greenberg, Appellant.
    (City Court of New York, General Term,
    July, 1897.)
    ■ Practice — Amendment of complaint.
    Where a proposed amendment to the complaint does not change the nature of the cause of action, the court has power to allow the amendment to be made upon the trial, or it may, in its discretion, permit the plaintiff to withdraw a juror and apply.at Special Term for leave to amend the complaint.
    Appeal by defendant from order allowing amendment of complaint. . 1
    Jacob Barnett, for appellant.
    A. H. Berrick, for respondent.
   Van Wyck, Ch. J.

At trial the justice granted plaintiff leave to amend complaint, with $20 costs to defendant to abide the event; but upon defendant’s counsel claiming surprise, this ruling was withdrawn and plaintiff allowed to withdraw a juror, with leave to move at Special Term for leave to amend. The motion at Special Term was granted upon condition that plaintiff, within tén days, pay $30 to defendant’s attorney, and it is from the order granting the motion that defendant now appeals. The amendment, if necessary, should have been allowed at trial, and its allowance at Special Term was a proper exercise of discretion, for it does not change the cause of action, which is still in replevin. The order is affirmed, with $10 costs.

Scotchman, J., concurs.

Order affirmed, with $10 costs.  