
    (68 Misc. Rep. 134.)
    O’BEIRNE v. KELLY.
    (Supreme Court, Special Term, New York County.
    June, 1910.)
    Pleading (§' 239)—Trial Amendments—Conditions—Costs.
    Where plaintiff, after defendant’s motion at trial to dismiss the complaint for insufficiency, is permitted to withdraw a juror upon payment of a trial fee in order to move at Special Term to amend his pleading, the costs to be imposed as a condition of granting leave to amend are not necessarily all costs to date, but are in the court’s discretion and should be fixed in vieiv of the amount involved and costs already paid.
    [Ed. Note;—For other cases, see Pleading, Cent. Dig. §§ 630-631; Dec. Dig. § 239.*]
    Action by Bridget O’Beirne against George T. Kelly. On motion for leave to file an amended complaint.
    Motion granted.
    Pheil & Bird, for plaintiff.
    Max D. Steuer, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   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 $30 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-McLean Const. Co., 115 App. Div. 172,100 N. Y. Supp. 681; Kerrigan v. Peters, 108 App. Div. 292, 95 N. Y. Supp. 723. 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 25 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 a condition of granting justice, and in the circumstances, in view of the amount already paid, I think $10 costs of motion should suffice.

Motion granted upon the payment of such costs.

Settle order on notice.  