
    Town of Palatine and Others, Respondents, v. The Canajoharie Water Supply Company and Joseph M. Johnson Appellants.
    Third Department,
    December 7, 1906.
    Court — power of Special Term to grant amendment allowed by Court of Appeals — town — amendment conditioned on payment of costs by town.
    When in an action by towns in which commissioners of highways were joined as plaintiffs a demurrer'to the joinder of the commissioners has been sustained with leave to amend, and, without amendment, the plaintiff appealed to the • Court-of Appeals, where final judgment was given - with “ leave to apply to the Supreme Court for such relief as they may be advised,” the Supreme Court has power -to allow an amendment striking out the improper parties. Such amendment, however, shpiild he conditioned on the payment hy the towns, of all ■ taxable costs, including those rendered against the highway commissioners, for the latter were merely siting as agents of the towns. But payment Of counsel fees incurred by defendants in respect to a temporary injunction should not be required. - . ,
    Appeal by the defendants, The Canajoharie Water Supply Com-pony and another, from an order of- the Supreme Court; made at the Fulton Special Term and entered in the office of -the clerk of the county of Montgomery on the 10th day of September, 1906.
    The action was brought by the towns of Palatine and Canajoharie -and the commissioners of highways of these towns, joined as plaintiffs against the defendants, to 'restrain the latter from laying water pipes over a'highway bridge between-the two towns. The defendants raised the question by demurrer, that the commissioners of highways were improperly joined with the town's as plaintiffs. This demurrer was overruled by the Special Term. ■ On appeal to this court the interlocutory judgment overruling the demurrer was. reversed and the demurrer sustained, with, leave to plead anew and to'.serve an amended summons and complaint.. (90 App. Div. 548.) In order to get a review in the Court of Appeals the plaintiffs did not comply with the conditions imposed as a prerequisite to amending, and final judgmenit. was rendered dismissing- -the .complaint, .with costs. The plaintiffs then appealed to this court, where such judgwas affirmed, and in turn to the Court of Appeals' from such filial judgment", with the intention of bringing up for review "all the prior orders and interlocutory judgments against' them.In the Court of Appeals the judgment of this court was affirmed, with costs, l< with leave to appellants to apply to the Supreme Court for such relief as they may be advised.” (184 N. Y. 582.) The plaintiffs then moved at Special Term for leave to make appropriate amendments of the summons and complaint to correspond with the judgment of this court and of the Court of Appeals, and for such other relief as may be just. The Special Term granted an order making such appropriate amendments to the summons and complaint, and also amending the judgment so that the complaint should not stand dismissed, but in force as amended, and granted to the defendants ten dollars costs of the motion. Ho costs were imposed as a condition of .making the amendment. From this order the defendants have appealed.
    
      Andrew J. Nellis and B. C. Fox, for the appellants.
    
      Henry V. Borst and Charles W. Wheeler, for the respondents.
   Chester, J.:

We disagree with the contention of the appellants’ counsel that the Special Term was without power to amend the judgment under the circumstances presented here. The Court of Appeals, in affirming the judgment of this court, had settled the law of this case, that the commissioners of highways were improperly joined with their respective towns as plaintiffs in the action. If the Supreme Court, acting through a Special Term, or an Appellate Division in an appropriate case, is powerless to make the judgment of the Court of Appeals effective because of highly technical objections largely relating to procedure, there is something inherently defective in our judicial system and the right of review in many cases would be rendered fruitless and worthless'.

While we entertain no doubt of the inherent power of the Special Term to make the amendments of the judgment and of the summons and complaint which it did, we think, as the defendants had earned a considerable amount of costs in their efforts to be rid of improper plaintiffs in the action and had recovered judgments for these costs against such improper plaintiffs as well as against the towns, that the amendments should not have been made except upon condition that the towns which remain as plaintiffs should pay the defendants their taxable costs as well as the costs of the motion.

The criticism by the appellants of 'this feature of the order as made • relates to á matter of substance, as one effect of it is practically to dismiss from the action two parties against whom judgments for costs have been' obtained'without making any provision for payment of.any of the costs incurred. The: condition-we suggest'will fur- . nish ample- protection to the defendants as the towns aré response ble- and no injustice follows by imposing the costs upon them as the commissioners were only agents for the town, the-proper plaintiffs; and can with propriety be relieved from paying the costs personally;

There is no reason shown why, in addition to the costs, the counsel fees incurred by the defendants with respect to the temporary injunction should have been imposed, as a condition of granting the amendments. The question of -the liability of the towns, for damages to the defendants because of the temporary injunction can well await the determination of the action on the merits. ■ " -

Thé order' should ,be modified by-adding after the words-*44 that the. defendants recover of the plaintiffs ten dollars-costs o'f this motion the following,- “ and that said- amendments are made upon condition that the1 plaintiffs, the town of Palatine and the town of Cánajoharie, pay to the_defendants all their taxable costs in the action,-• including said •-ten . dollars . costs ■ of motion,” and - as so ’ modified affirmed, with ten dollars costs and printing disbursements. ■

All concurred,

Order modified as per opinion and as modified' affirmed, with ten dollars costs and disbursements to the appellant.  