
    John Howard, Appellant, v. John A. Moller, Respondent.
    (New York Common Pleas —
    General Term,
    April, 1895.)
    A statement in the opinion of a court upon granting an amendment of a complaint that a certain case is “decisive upon the question of terms ” does not imply a surrender by the court of its discretion as to the terms of the amendment, but is simply a statement of opinion that upon the same state of facts the decision as to terms should be the same.
    Appeal from an order of the General Term of the City Court of New York, reversing an order of Special Term which permitted plaintiff to amend his complaint on payment of thirty dollars costs, and allowing plaintiff to amend on payment of all costs to date.
    
      SpeUissy t§ Gray, for appellant.
    
      Ed/ward W. ¡S. Johnston, for respondent.
   Daly, Oh. J.

The City Court, at Special Term, allowed an amendment of the complaint on payment by plaintiff of thirty dollars costs; and, upon appeal, the General Term of that court imposed, as terms of amendment, the payment of all costs to date. This appeal is argued upon the assumption that the General Term held that it had no discretion as to terms of amendment; and the argument is based upon the opinion of the court as follows : “ We think the case of Walton v. Mather, 10 Misc. Rep. 216, is decisive upon the question of terms, and that the order appealed from should be reversed, with costs, and amendment allowed upon payment of all costs to date.” Mothing, however, contained in the order appealed from indicates that the court did not exercise the discretion conferred by the Code (539), which permits amendments of pleadings in the discretion of the court upon such terms as it deems just; and if we are permitted to search the opinion of the court for error upon which to reverse, we nevertheless are unable to say that the phrase used by the General Term fairly implies a surrender of discretion. The appellant is quarreling with a mere mode of expression, which, after' all, does not necessarily bear the construction he contends for. The expression l< we think a certain case decisive upon the question of terms” simply states an opinion that upon the same state of facts the decision as to the propriety of terms should be the same, which is a very fair exercise of discretion by the court in disposing of the case, as tending to the greater certainty of practice and consequent safety of litigants.

The order is affirmed, with costs and disbursements.

Bischoff and Pryor, JJ., concur.

Order affirmed, with costs and disbursements.  