
    Dovale v. Ackerman et al.
    
    
      (Supreme Court, Special Term, New York County.
    
    March 3, 1890.)
    Costs—Taxation—Allowance op Amendment.
    Plaintiff was required to pay the accrued costs as a condition of being allowed to amend his complaint. Held, that plaintiff, having afterwards obtained a judgment, was entitled to tax in his bill of costs the items so paid.
    At chambers.
    Action by Bicot J. Dovale against Bernard L. Ackerman, Sr., and Bernard L. Ackerman, Jr. Plaintiff asked leave to amend his complaint, which was allowed on condition that plaintiff pay the costs accrued from the commencement of the action to the time the amendment was made. At the trial plaintiff obtained a judgment, and in taxing his costs the clerk disallowed the amount paid to defendant under the condition imposed, and plaintiff moves for a retaxation.
    
      James M. Lyddy, for plaintiff. Coudert Bros., for defendants.
   O’Brien, J.

If there was no dispute as to items of costs, the plaintiff, having succeeded in the action, would have been entitled to costs as of course. As a condition of being allowed to amend, plaintiff paid the term fees, etc., to defendants. Is it not clear that, if not allowed to tax these now, plaintiff has paid double costs for the amendment, viz., those actually paid to defendants, and those which the clerk has decided cannot be taxed against defendants because heretofore paid to the latter? The motion to retax granted, and the exceptions on appeal from the clerk’s taxation allowed.  