
    Clare F. Thomas, Respondent, v. John H. Springer, Appellant.
    Second Department,
    July 29, 1910.
    Pleading --- amendment before new trial terms.
    Where a reversal of'a judgment .for the plaintiff by the Appellate-Division granting -a new, trial is upon 'grounds which preclude a recovery under the original complaint,-,an amendment which seeks, to hold the defendant upon other grounds should be conditioned" upon the payment of all costs and disbursements in the-action.
    Appeal by the defendant, John II. Springer, -from an order of. the Supreme Court,, made at- the. Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1910.
    
      George W. Glaze, for the, appellant.
    
      Frederick, N. Van Zandt, for the respondent.
   Per Curiam :

The defendant appeals from an order of the Special Term that . amends the complaint after the plaintiff’s judgment at Trial Term had been reversed in this court and a new trial liad been granted. The terms imposed were payment of $10 costs-,. The plaintiff complained originally of personal injuries due solely or only to the negligence of the defendant and his servants, agents-.and employees, in charge of a certain apparatus'in a theater whereby a^part of the apparatus fell upon tíre plaintiff. At trial the person who worked the apparatus, testified that he dropped a part thereof ■ from." his hand. We reversed the judgment upon the ground that, the defendant was not liable for this act, for-the actor at the time was a servant of an independent contractor. (Thomas v. Springer, 134 App. Div. 640.) The plaintiff would now amend her complaint by charge of negligence against the defendant in that he failed to provide a safe place and safe appliances. In the amended complaint she omits the original charge of liability on the ground of respond-eat superior. We held in our judgment that the status of the alleged servant was determined by a, written contract between the defendant and the John C. Fischer Company, and that there was not sufficient proof of any estoppel of the defendant to deny that the actor was his servant. Under the first complaint, then, the plaintiff sought to hold the defendant liable for the conduct of. his servant, and under the amended complaint she seeks to hold the defendant liable for. his own breach of duty. It would seem that the reasons for our reversal prohibit recovery upon the original allegation of negligence, and the plaintiff’s course, not only in’seeking this amendment, but in omitting the original allegation, would seem to concede this. We think that the terms imposed should have been the payment of all costs and disbursements in the action. (Rosenberg v. Feiering, 124 App. Div. 522, and cases cited; Purcell v. Hoffman House, 131 id. 239, and cases cited.). The reason for the imposition of terms is stated by the court in McEntyre v. Tucker (40 App. Div. 444): “ It is conceded by the motion that the plaintiff cannot recover in the present fonn of action. The defendant was, therefore, justified in defending; and for the costs and disbursements to which he has been putin the establishment of a successful defense, he is entitled to be reimbursed.”

The order must be modified in accord with this opinion, and as so modified affirmed, without costs. •

Hirschberg, F. J., Woodward, Jenks, Bürr and Thomas, JJ., concurred.

Order modified in accord with opinion, and as so modified affirmed, without costs.  