
    The People of the State of New York ex rel. Clark H. McDonald, Respondent, v. George C. Clausen, as President of the Department of Parks in the City of New York and as Park Commissioner of the Boroughs of Manhattan and Richmond in Said City, Appellant.
    
      Amendment of an alternative writ of mandamus — on what terms granted after the case has been taken to the Oourt of Appeals, without success, by the party applying for it.
    
    At the opening of the trial, on May 9, 1899, of the issues raised by an alternative writ of mandamus, the respondent called attention to the fact that the writ merely required him to file a return. Thereupon the court allowed an amendment to the writ so as to direct the reinstatement of the relator as superintendent of the Harlem River Driveway, and the payment to him of his salary. The Appellate Division, upon appeal, determined that the trial court had no power to allow the command of the writ to be enlarged at the trial and granted a new trial. The relator appealed to the Court of Appeals, which dismissed the appeal upon the ground that it had no jurisdiction. Six months thereafter the relator moved the Appellate Division for a resettlement of its order, which motion was denied. In December, 1900, he made a motion at the Special Term for an amendment of the writ similar to that granted at the trial.
    
      Held, that the Special Term should have required the relator, as a condition of allowing the amendment, to pay all the defendant’s costs and disbursements . after service of the writ, including the appeals to the Appellate Division and to the Court of Appeals, and to stipulate to waive all claim for salary subsequent to the date of the trial.
    Appeal by the defendant, George C. Clausen, as president of the department of parks in the city of New York, and as park commissioner of the boroughs of'Manhattan and Richmond in said city, from . an. order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1901, granting the relator’s application to amend an alternative writ of mandamus.
    
      Theodore CJonnoty,. for the appellant.
    
      M. Lirni Bruce, for the respondent.
   Hatch, J :

An alternative writ of mandamus was issued herein commanding respondent to make return thereto within twenty days after service thereof, pursuant to title 2, chapter 16 of the Code of Civil Procedure, by filing the same in the office of the clerk of this court and by serving a copy thereof upon the attorneys for the relator.

The respondent made the return required within the time named, denying each of the allegations set forth in the writ, with one exception. No other command than as above set forth was contained in the writ, and the issues made by the writ and returned came on for trial at a Trial Term, before a jury, on May 9, 1899. At the opening of the trial, counsel for defendant called attention to the form of the writ and duly objected to any further proceedings thereunder. Thereupon the court, on motion of the relator, allowed an amendment of the writ which entirely changed the command and directed the reinstatement of relator ns superintendent of the Harlem River Driveway, and the payment to him of the specified salary, with other relief. This was objected to by counsel for defendant, upon the ground that the trial court had no power to amend the writ. The objection was overruled and the defendant duly excepted.

The effect of this amendment was to convert a writ which directed no action on the part of the respondent into one directing action of vital moment. The jury having found in favor of the relator, and a final order having been entered thereon, the defendant appealed from the order granting the peremptory writ and from the order of the trial court denying his motion for a new trial. (People ex rel. McDonald v. Clausen, 50 App. Div. 286.)

This court reversed the orders, holding that the trial court had no power to allow the command of the writ to be enlarged at the trial, and granted a new trial. The relator did'not accept the decision, but appealed to the Court of Appeals, stipulating that upon the affirmance of the order appealed from judgment absolute should be rendered against him. The Court of Appeals dismissed the appeal upon the ground that it had no jurisdiction (163 N. Y. 524), holding that the proper remedy of the relator was a new trial of the issues joined upon the alternative writ. Relator did not accept this determination and act upon it, but some six months after moved this court for a resettlement of its order. This motion was denied, and in December, 1900, a motion was made at . Special Term to obtain an amendment of the writ by adding to its provisions the following: “ And we further command you, that upon the receipt of this writ you reinstate the said relator as Superintendent of the Harlem River Driveway, and pay to him the sum of one hundred and twenty-five dollars a month, from the 14th day of February, 1898,” and for other relief. This motion was granted oh payment of ten dollars costs, and from the order so made and entered this appeal is taken.

While the Special Term doubtless had the power to grant the motion and allow the amendment (People ex rel. McDonald v. Clausen, 50 App. Div. 287), and we are not prepared to say that the discretion of the court was unwisely exercised in allowing the same, yet we are of the opinion that the terms upon which it was allowed were entirely inadequate. . The rélator in seeking the amendment appeals to the favor of the court, and it would be entirely unjust to inflict upon the defendant the burden of the cost of all the litigation caused by his persistence in a wrong course. The result of the course pursued by relator, should he finally succeed in securing a peremptory mandamus restoring him to position and salary, is that the defendant will be compelled to pay the salary of relator from the date of his removal to the time of his reinstatement, during which time he will not have rendered any service, all of which delay has been caused by the persistence of relator in an erroneous course. In addition to this is the burden of the cost and trouble of the litigation. Both on principle and authority we think the Special Term was in error in granting the relief upon such terms. (Rodgers v. Clement, 58 App. Div. 54; Ireland v. Metropolitan Elevated R. Co., 8 N. Y. St. Repr. 127; McEntyre v. Tucker, 40 App. Div. 444.) We think the relator should not be allowed the amendment except he indemnify the defendant for the expense, incurred in the litigation and waive his salary for the time subsequent to the trial.

The order should, therefore, be modified as indicated by requiring, as a condition of allowing the amendment, that the relator pay all the defendant’s costs and disbursements after the service of the writ, including the appeals to the Appellate Division and the Court of Appeals, and stipulate to waive all claim for salary subsequent to the date of the trial, May 9, 1899, and as so modified .affirmed, with ten dollars' costs and disbursements to the appellant. In case such conditions be not complied with, the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Bbunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Order modified by requiring, as a condition of allowing the amendment, that relator pay all defendant’s costs and disbursements after service of writ, including the appeals to the Appellate Division and the Court of Appeals, and stipulate to waive all claim for salary subsequent to the date of the trial, May 9, 1899, and as so modified affirmed, with ten dollars costs and disbursements to appellant. In case such conditions be not complied with, order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  