
    Samuel Ohlbaum, as Administrator, etc., of David H. Ohlbaum, Deceased, Respondent, v. Commercial Casualty Insurance Company, Appellant.
   Order granting leave tó plaintiff to serve an amended complaint reversed upon the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. As the status of the action was not shown, we are unable to decide whether the terms imposed were adequate. The amendments which plaintiff desired to make should have been permitted only on payment of costs to date. The proposed amendment by which plaintiff sought to allege a waiver, was frivolous. If plaintiff has performed, then that fact should be alleged without qualification. If he has not performed, for the reason that defendant waived performance, then the conditions waived and the facts and circumstances constituting such waiver must be alleged. (Todd v. Union Casualty & Surety Co., 70 App. Div. 52.) Leave to plead anew in conformity with the foregoing memorandum should be granted on payment of costs to date. Kelly, P. J., Jaycox, Young, Kapper and Lazansky, JJ., concur. Settle order on notice.  