
    Michael Bowen, Resp’t, v. Michael Sweeney, impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    1. Costs—Amendment op pleadings.
    Where, after reversal of a judgment with costs to defendant to abide the event, the plaintiff is permitted to amend the complaint on payment of a full bill costs and disbursements to date, this includes the costs of the appeal.
    2. Same—Term pees.
    Where the defendant places the cause on the calendar before it is in a condition to be tried, this gives him no right to a term fee, as the case is not properly on the calendar.
    Appeal from order denying motion for a retaxation of costs.
    
      William H. Arnoux and Francis C. Devlin, for app’lts; Flamen B. Candler, for respondent.
   O’Brien, J.

The action in which the motion is made was brought in partition, and, after one amendment of plaintiff’s complaint, was brought on for trial, and resulted in a judgment in plaintiff’s favor, from which an appeal was taken to this general term, where it was reversed, and a new trial ordered, with costs to defendants to abide the event 44 St Rep., 182. The right to amend the complaint upon the trial having been questioned in the opinion of the general term, the plaintiff moved at special term to again amend, which motion resulted in the making of the following order by Mr. Justice Andrews: “ Ordered, that said motion be, and the same is hereby, granted, and that' plaintiff have leave to serve such second amended complaint on condition that within ten days after the adjustment by the clerk of the costs hereinafter mentioned, etc., the plaintiff pay to Francis G. Devlin, attorney, etc., and to William H. Arnoux, attorney, etc., each a full bill of costs and disbursements to date, to be taxed by the clerk of this court.” The clerk, upon the taxation, disallowed all the general term costs, and thereafter defendants moved for a relaxation, which was denied, and from such denial this appeal is taken.

It was no part oí the clerk’s duty, any more than it was of the learned judge who heard the motion for retaxation, nor is it our duty, to determine the terms which should have been imposed; the question being, what is the true construction of the judge’s order allowing the amendment, which has never been modified or appealed from ? We think it reasonably free from doubt. It meant to award to the defendants exactly what it states, “ a full bill of costs and disbursements to date.” The judge bad undoubted power, as a condition of granting the favor, to include the costs which by the general term were made to abide the event, because he had a right to consider whether the effect of the amendment was to make a new cause of action, and thus to conclude that the failure to serve a proper complaint had caused the appellants the waste of time, labor and expense incident to the preparation of a trial, the judgment thereon, and the subsequent appeal. Costs are so imposed as a condition for the amendment, and cannot be regarded as being a payment of the costs of the action; and the effect of compelling, as a condition, an amount of costs to be paid equal to those which by order of the general term were made to abide the event, in no way affects or overrides the disposition made by the general term of the appeal. In other words, the learned judge allowing the amendment did not attempt to change the direction made by the general term with respect to what should be done with costs which were ordered to abide the event. And should the appellant finally succeed in the action he will be entitled to tax the costs over again, pursuant to the order of the general term. This latter order, moreover, affected the costs at special as well as those at general term ; and to be consistent, if it was thought that the order of the general term requiring the costs to abide the event in any way restricted the right to allow costs as a condition of the amendment, then the special term costs should have been excluded as well as the general term costs. The question, as stated, however, is simply, what terms did the judge allowing the amendment to the complaint impose as a condition ? His order, as shown, says, “ a full bill of costs and disbursements to date.” In Havemeyer v. Havemeyer, 44 N. Y. Super. Ct., 170, it was held that the phrase, “on payment of costs of the action to the present time,” as the consideration of an amendment, meant such costs as would go to the party against whom the amendment was allowed in case there had been a determination favorable to him at the date of the order granting leave to amend. We think, therefore, it was an erroneous construction of the judge’s order to hold that thereunder the general term costs were to be excluded. In addition to these, the clerk disallowed $30 term fees; this item being disputed on its merits. It would appear that at the first term, after all the defendants were served, and the case was ready to be tried, it was reached and disposed of. We do not think the fact that one or all of the defendants placed the cause on the calendar and noticed the same for trial before the same was in condition to be tried, gave them any right to term fees, because the cause was not properly on the calendar until all the parties were served and had answered ; and it would appear that, as soon as the cause was thus ready, it was reached and tried; and the clerk’s ruling, excluding the item of $30 term fees, we think was correct. We think, however, that so much of the order as sustains the clerk in disallowing the general term costs should be reversed, with costs and disbursements. In view of the fact that the terms imposed by these orders seem to be very stringent and onerous, this disposition of this appeal is without prejudice to any application which respondent may make to Mr. Justice Andrews to modify the terms of the original order.

Van Brunt, P.J., concurs.  