
    Tradesmen’s National Bank, Appellant, v. Grove D. Curtis and Walter F. Blaisdell, Respondents.
    
      Amendment of an answer, after the reversalof a judgment for defendant in the Court of Appeals—as a condition thereof, all taxable costs should be paid and the plain- ' tiff be allowed to discontinue, although the reversal was in part for insufficiency: of evidence.
    
    In an action to recover the amount of a draft which had been accepted by the defendants and indorsed and delivered to the plaintiff, the defendants contended that they accepted the draft under an agreement that goods to the amount of the draft should, before the maturity thereof, be delivered to them by the drawer; that the plaintiff took the draft with knowledge of such agreement, and that the agreement had not been performed by the drawer.
    The Court of Appeals, in reversing a judgment in favor of the defendants and . granting a new .trial, stated that the defense was not sufficiently pleaded, and also that it had not been established by the evidence. The defendants thereupon, to meet the criticism made by the Court of Appeals, made a motion to amend.the answer, and the motion was granted upon the payment by them of ■ fifty dollars costs.
    
      Held, that the motion was properly granted, but that the defendants should have been required to pay all the taxable costs of the action, and that the plaintiff should be permitted, if so advised, to discontinue the action without costs; That the fact that the reversal proceeded partly upon the insufficiency of the plaintiff’s' evidence did not make it improper to grant ■ the amendment, as the defendants might have additional evidence which was not presented on the former trial.
    Appeal by the plaintiff, Tradesmen’s National Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1901, granting the defendants’ motion for. leave to amend their answer.
    
      Arthur J. Baldwin, for the appellant.
    
      George JR. Carrington,. for the respondents.
   Patterson, J.:

This appeal is from an order allowing the defendants to amend their answer, after a reversal by the Court of Appeals of a judgment in their favor and the direction of a new trial by that court. The action was brought upon two drafts drawn by the Natalie Anthracite Coal Company upon the defendants and accepted by them - and indorsed and delivered to the plaintiff. The position assumed by the defendants on the trial of the action was that they accepted the drafts on an understanding or agreement that coal to an amount equal to the value of such drafts should be delivered to the defendants before the maturity thereof, and that such drafts should be paid only after a full compliance by the Natalie Anthracite Coal Company with that agreement; that the plaintiff at the time it took the drafts had full knowledge of the understanding or agreement upon which the defendants accepted them and that no coal was ever delivered by the Natalie Anthracite Coal Company to the defendants and that the acceptances were without consideration.

In passing upon the case the Court of Appeals in its opinion remarked that “ the plaintiff was not apprised by the answer that the defendants intended to establish any such defense, nor was the action tried upon the theory that the plaintiff through its cashier was a party to any such agreement.” (Tradesmen's Nat. Bank v. Curtis, 167 N. Y. 198.) The defendants now seek to meet the view of their pleading expressed by the Court of Appeals by setting up in an amendment to their answer that the said drafts “ were accepted by the defendants and delivered to plaintiffs on and in pursuance of an agreement entered into between these defendants, the Natalie Anthracite Coal Company, through its present President, Nathaniel Taylor, acting for and on behalf of said Coal Company, and the plaintiff, through its Cashier, Robert Wardrop, acting for and on behalf of plaintiff, * * * and that said drafts should not be collectible and these defendants should not be holden on them in case of failure to deliver said coal as aforesaid.” A motion was, therefore, made to supply what was regarded by the Court of Appeals as a defect in the answer. It is true that the Court of Appeals did not place it's reversal simply upon a defect in pleading, but considered the whole evidence in the record and held that upon such evidence the alleged contract relied upon by the defendants was not proven and that the verdict of the jury on the trial of the cause was not supported by evidence. But that view of the record before the Court of Appeals does not require a reversal of the order now before us. The defendants may have additional evidence not presented on the former trial, which may go to the establishment of their defense and to prove that the plaintiff was a party to the agreement set forth in the amendment to the answer. The order allowing the amendment was, therefore, properly made, but the terms were entirely inadequate. The defendants were required to pay fifty dollars costs. They should have been required to pay the whole costs of the action. The plaintiff was compelled to litigate the cause through its various stages until it finally succeeded in the Court of Appeals, and before a radical change is made in the issues it should receive a proper indemnity for the expense it has been put to in the assertion and protection of its legal right. The order should be modified by requiring as a condition of leave to serve the amended answer, the payment of all the taxable costs of the action to date including costs on appeal to this court and the Court of Appeals. At the same time permission should be given to the plaintiff within ten days after the service of the order tó be entered hereon and the payment of costs to be provided for therein, to discontinue the action if it is so advised, without costs.

. The order must be modified in accordance with the views herein . expressed, without costs to either party of this appeal.

Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred.

Order modified as directed in opinion, without costs to either party. 
      
      
        Sic.
      
     