
    (52 Misc. Rep. 648)
    HOUSE et al. v. CARR.
    (Supreme Court, Special Term, Oswego County.
    December, 1906.)
    Appeal—Amendment After Remand—Pleading—Conditions.
    Where it was determined on appeal that plaintiff was not entitled to recover under the allegations of the complaint, plaintiff will be permitted to amend on payment of the taxable costs and disbursements in both the Appellate Division and the Court of Appeals.
    [Ed. Note.—For eases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4677, 4682.]
    Action by Maria House and Cline E. House against Lucian C. Carr, administrator. Motion by plaintiff to amend summons and complaint. Amendment granted on terms.
    O. M. Reilly, for the motion.
    S. C. Huntington, opposed.
   DEVENDORF, J.

It has been finally decided herein by the Court of Appeals (House v. Carr, 185 N. Y. 453, 78 N. E. 171) that the plaintiff is not entitled to a recovery under the allegations of the complaint. The defendants were forced, to defend on the line laid down by the plaintiff, and have been put to certain costs in the effort to sustain their position. If the plaintiffs desire to try another issue, the)' should first make the defendants • whole for what they have already incurred, to the extent of the taxable costs and disbursements. The plaintiffs now ask to be permitted to amend by making the executrix of the estate of the deceased mortgagor a party plaintiff, and also by' inserting an allegation of payment of tlie mortgage sought to be foreclosed by the statutory proceeding.

I am of the opinion that that changes the nature of the action sufficiently to bring' it within the rule stated in Bates v. Salt Springs Nat. Bank, 43 App. Div. 331, 60 N. Y. Supp. 313. Consequently the amendment, if granted, should be upon the terms of payment of the taxable. costs and disbursements in both the Appellate Division and the Court of Appeals. Under the authorities I do not understand that there is but little, if any, discretion in this court upon this motion as to the terms to be imposed. The amendment asked for is granted upon the terms above stated.

Motion granted.  