
    JOHN ROMAIN, as Continuing Partner, etc., Appellant, v. DAVID J. GARTH, Executor, etc., and others, Respondents.
    
      Judgment recovered by firm—release of, entered by one partner in clerk's office — cancellation of— Complaint— amendments to.
    
    This action was commenced by the plaintiff upon a judgment recovered by his firm, prior to its dissolution, against a firm of which Odell, the defendant’s testator, was a member. After the commencement of the action, the plaintiff discovered that one Schanck, a former partner of his, had given a release from the judgment to Odell, which had been delivered to the county clerk, who had marked the judgment, released as to him. The plaintiff then moved to have the entry in the clerk’s office canceled, and for leave to amend his complaint hy alleging that the release was given fraudulently and without authority, and by collusion between Odell and Schanck, and praying that the same might be declared null and void, both of which motions were denied. Held (1), that the order denying the motion to cancel the entry in the clerk’s office was correct; (2), that the plaintiff should be allowed to amend his complaint upon payment of all the costs of the action up to the time of this appeal.
    Appeal from an order made at the Special Term, denying a motion to cancel an entry that the judgment upon which this action is brought had been released, such entry having been made by the clerk of the county of New York on the docket of the judgment. And also an appeal from an order made at the Special Term denying a motion for leave to amend the complaint.
    
      A. O. Merritt, for the appellant.
    
      Saeketts ds Lang, for the respondents.
   Opinion by Lawrence, J.

Davis, P. J., and Daniels, J., concurred.

Order denying motion to cancel entry affirmed, with costs. Order denying motion to amend reversed, without costs, and leave granted to amend the complaint upon payment of all costs and disbursements up to the time of this appeal, together with the costs of the motion.  