
    William P. Roome et al., App’lts, v. Frederick C. Jennings et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed October 24, 1893.)
    
    Pleading—Amendment.
    Upon affirmance of a judgment on plaintiff’s appeal, the appellate court stated in the opinion that “if the plaintiffs can show a different state of facts and desire to do so, their remedy is by motion for leave to amend their complaint.” Held, that this meant, provided plaintiffs should acqwiesce in the law as laid down, and move for the vacation of the judgment on terms and for leave to amend, and that such leave would not be granted where no motion to disturb the judgment is made, but an appeal is taken to the court of appeals.
    Appeal from order denying motion for leave to amend the complaint.
    
      F. A. Thomson, for app’lts; Putney & Bishop, for resp’ts.
   Freedman, J.

It appears that the issue of law raised by defendants’ demurrer to the complaint resulted in a judgment for six cents damages to the plaintiffs, and awarding the costs of the action to the defendants. From this judgment the plaintiffs appealed to the general term of this court, where the judgment was affirmed, with costs. In the opinion then delivered the court said, 3 Misc: Rep., 413; 52 St. Rep., 507: “If the plaintiffs can show a different state of facts, and desire to do so, their remedy is by motion for leave to amend their complaint.” This meant: Provided the plaintiffs should acquiesce in the law as laid down, and move for the vacation of the judgment upon terms, and for leave to amend. But the plaintiffs did not do this. They simply moved for leave to amend the complaint, without asking to have the judgment disturbed; and from the judgment they appealed, as has been, conceded on the argument before us, to the court of appeals, where they intend to ask for the reversal of the judgment on the ground of error. Under these circumstances, the motion for leave to amend was properly denied. The order should be affirmed, with ten dollars costs and disbursements.

GrlLDERSLEEVE, J., CODCUl'S.  