
    The Yellow Pine Co., Respondent, v. Alfred Gutwillig, Appellant.
    (City Court of New York, General Term,
    June, 1897.)
    Practice — Amendment of complaint.
    .Where the plaintiff has not rested, its case, the court may properly permit'it to withdraw a juror and grant it permission to apply at the Special Term for leave to amend its complaint, and a motion made by the defendant that a nonsuit be granted, is properly denied.
    Appeal by defendant from order made at Trial Term, allowing plaintiff to "withdraw a juror and denying defendant’s motion to dismiss, and from order of Special Term granting plaintiff’s motion for leave to amend complaint:
    
      C. Elliott Minor, for appellant.
    Eugene Sondheim, for respondent.
   Van Wyck, Ch. J.

The plaintiff had not rested when its request to withdraw a juror and defendant’s motion to nonsuit plaintiff were made. It was not error to deny the nonsuit, nor to. permit plaintiff to withdraw a juror with leave to apply at Special Term for leave to amend the complaint. It was proper for the Special Term to permit an amendment of the complaint upon payment of $30, the trial fee, to defendant. The defendant’s motion, made at the opening of the trial, to dismiss the complaint, because it did not state a cause of action, was properly denied as the complaint did state facts sufficient to constitute a good cause of action. The orders are affirmed, with costs.

McCarthy, J., concurs.

Orders affirmed, with costs.  