
    Dudley T. Lyall and Charles T. Telford, Respondents, v. Olin W. Wood, Appellant.
    Third Department,
    January 6, 1909.
    Pleading — amendment — terms.
    While the terms upon which amendments to pleadings are allowed rest to a great extent in the discretion of the court upon the facts of each particular case, a material amendment. to the complaint granted after an unsuccessful trial should be conditioned, on the payment of costs and disbursements since the original complaint was served unless reasons for imposing other terms are showin.
    Hence where a plaintiff suing to recover the purchase price of goods sold, having twice been nonsuited upon the ground that the contract of sale was made with the plaintiff’s principal instead of with the plaintiff, asks leave to amend by alleging' that the principal’s right of action had been assigned to the plaintiff, the amendment should be conditioned on the payment of costs and disbursements made since the original complaint was served, together with costs of motion.
    Chester and Sewell, JJ., dissented in part.
    Appeal by the defendant, Olin W. Wood, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 10th day of September, 1908, allowing the plaintiffs, after two unsuccessful trials of the action, to serve an amended complaint upon payment of costs.
    
      Wagner & Fisher, for the appellant.
    
      G. W. Youmans and F. W. Youmans, for the respondents.
   Kellogg, J.:

The complaint alleged a cause of action for the purchase price of a dynamo sold by the plaintiffs to the defendant, and as a second cause of action an indebtedness by the defendant to the plaintiffs for money paid and expended for the defendant at his request and which he agreed to pay. The answer was a general denial, and an allegation, in substance, that the dynamo was purchased by the defendant of Fairbanks, Morse & Co., was not according to contract, and that there was a failure of consideration. The action was tried in February, 1908, and the plaintiffs were nonsuited as to the first cause of action and the jury disagreed as to the second cause of action. It appeared upon the trial that there was a written contract for the sale of the dynamo between the defendant and Fairbanks, Morse & Co., and some days before the Trial Term the defendant served upon the plaintiffs a notice requiring its production. The plaintiffs contended that as agents for Fairbanks, Morse & Co., the sale being made in their territory, the company treated it as their sale and they had settled with the company therefor and defendant had agreed to pay them.

The action was again brought to trial at the May, 1908, term of court i with a similar result. On the 19th day of August, 1908, the motion papers were served and the order appealed from was granted September 1,1908, permitting an amendment of the first cause of action by alleging a contract of sale by Fairbanks, Morse & Co. to the defendant and an assignment by the company to the plaintiffs. It is not 'claimed that the plaintiffs now have any different or better information as to the situtation than they had at the time of the first and second trials, and no good reason is alleged why an amendment to the complaint was not then sought. Plaintiffs deliberately took the chances of winning on the pleadings as they were and failed, and now after two trials seek to change their position. They deem the amendment necessary, 'and the result of the trials indicates at least its propriety. The Special Term did not consider the plaintiffs’ laches such as to require a denial of .the motion, and we are not disposed to interfere with that exercise of discretion. The terms upon which amendments to pleadings are allowed rest to a great extent in the discretion of the court upon the facts of each particular case. Where some reason is not shown moving the discretion of the court otherwise, the rule is well established that where material and substantial amendments are granted a party after an unsuccessful trial, the other party should be reimbursed for the taxable costs and disbursements made since the pleading to be amended was served. The facts in this case furnish no reason for a departure from the rule.

The order appealed from should, therefore, be modified by requiring as a condition of the amendment the payment of the costs and disbursements made since the original complaint was served, and ten dollars costs of motion, and as so amended such order is affirmed, with costs to the appellant to abide the event.

All concurred, except Chester and Sewell, JJ., who voted for affirmance.

Order modified by requiring as a condition of the amendment the jpayment of all costs and disbursements made since the original complaint was served, with ten dollars costs of motion, and as so modified Affirmed, with costs' to the appellant to abide event. •.  