
    Marx v. Gross.
    (New York Superior Court
    General Term,
    February, 1893.)
    At the trial, defendant obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. These costs were paid, and the answer amended. Final judgment was obtained by plaintiff.. Held, that plaintiff could not include in his bill of costs the costs paid as a condition of obtaining leave to amend; that the order allowing amendment was an adjudication that the costs imposed belonged to plaintiff, and that they could not be again taxed in favor of either party.
    Appeal from an order dismissing plaintiff’s motion for a retaxation of costs.
    
      George A. Black, for plaintiffs (appellants).
    
      Foster & Thomson, for defendants (respondents).
   Dugeo, J.

During the trial the defendant obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. He paid the costs and amended. A final judgment was obtained by the plaintiff, who presented a bill of costs from which, upon taxation, the clerk struck all items included in the costs paid, as a condition of obtaining leave to amend.

From an order made at Special Term affirming the taxation, this appeal is taken. The clerk’s action was proper. The items in question were finally disposed of by the order allowing the defendant to amend, he having paid the costs and amended. The order was an adjudication that the items covered by it belonged to the plaintiff; they could not be again taxed in favor of either party. Seneca Nation v. Hawley, 32 Hun, 288; Provost v. Farrell, 13 id. 303.

Order affirmed, with ten dollars costs and disbursements.

Sedgwick, Oh. J., and Gildebsleeve, J., concur.

Order affirmed, with costs.  