
    John B. Ireland, Resp't, v. The Metropolitan Elevated Railway Co., App'lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 24, 1887.)
    
    Amendment—On new trial.
    Where an action had been once tried and the judgment entered in favor of plaintiff, which was reversed on appeal to the general term, “with costs to abide the event” and a new trial ordered, at which new trial the defendant objected to the sufficiency of the complaint, and plaintiff was allowed to amend on payment of twenty dollars costs. Held, that the plaintiff should have been ordered to pay the costs awarded to the appellant on the appeal, and ten dollars costs of the motion as the terms on which the amendment would be allowed.
    Appeal by the defendant from an order of the special term allowing the plaintiff leave to serve an amended complaint on payment of twenty dollars costs.
    This action was originally brought to recover the total damage to plaintiff’s easements of light, air and access, appurtenant to his property in Amity street and South Fifth avenue, in consequence of the construction, maintenance and operation of defendant’s railroad. Ireland v. Met. El. B. B. Co., 52 Super. Ct., 450. The plaintiff had a verdict in November, 1884, for $13,550. The defendant appealed to the general term. In December, 1885, the judgment appealed from was reversed, and a new trial was ordered, " with costs to the appellant to abide the event. ” The court then held that the total damage to the fee might be recovered, upon an offer at the trial to convey the property .alleged to have been taken, but that damages to the rental value could not be recovered in this case. Id. In January, 1886, the court of appeals decided that no action would lie to recover the total damage to the fee in such a case, but the plaintiff’s only remedies were either successive suits to recover his temporary damages to the rental value, or an action in equity to restrain the operation of the railroad and .abate the nuisance; or, -where the highway has been exclusively appropriated, an action of ejectment.
    Accordingly, when the new trial came on before Judge Freedman and a jury, in March, 1886, the defendant ■objected that the complaint was insufficient, because it .stated only a cause of action for injury to the fee, and no •such action would lie. The court sustained the objection, but gave the plaintiff leave to withdraw a juror and apply ■to the special term for relief.
    
      Whitehead, Parker & Dexter, for resp’t; Davies, Cole & Rapallo, attorneys, and Edward C. James, of counsel for app’lt.
   Per Curiam

This action has been tried once and a judgment entered in favor of the plaintiff.

From that judgment the defendant appealed and on the appeal a new trial was ordered with costs to the appellant, to abide the event.

After the decision of the general term the case was brought on for trial before a judge and a jury when the defendant objected that the complaint w-as insufficient because it stated only a cause of action for injury to the fee .and no such action would lie.

The judge before whom the case then was, sustained the •objection, but gave the plaintiff leave to withdraw a juror ánd apply to the special term for relief. The plaintiff availed himself of the leave given to him by the trial judge .and applied at special term for the relief suggested.

The judge below allowed him to amend his complaint upon payment of twenty dollars costs.

We cannot say that the discretion of the judge was unwisely exercised in allowing an amendment, but we are of the opinion that the terms on which the amendment was allowed are not all that should have been given by the judge at special term.

It may be that this amendment will result in a verdict in favor of the respondent in which event the appellant will lose the costs of an appeal in which he was successful.

We, therefore, amend the order of the court below by striking out the words, “twenty dollars costs,” and substituting in the place thereof the words, “ the costs awarded to the appellant on the appeal and ten dollars, costs of the motion,” and as so modified, the order appealed from is affirmed, without costs.  