
    Caroline Steinbach, Respondent, v. The Prudential Insurance Company of America, Appellant.
    
      Amendment, by bringing in an additional defendant — costs, where the case has gone to the Court of Appeals on the question as to the necessity of so doing.
    
    Upon the trial of an action the defendant made á motion to dismiss the complaint because of the failure of the plaintiff to join a party whose presence was alleged to be necessary. The motion was denied by the trial court and judgment was rendered in favor of the plaintiff. The ruling was sustained by the Appellate Division, but was reversed by the Court of Appeals, which granted a new trial, with costs to abide the event. The plaintiff thereupon made a motion to bring in the party in question and the motion was granted on payment of ten dollars costs.
    
      Held, that the court should, as a condition of granting the motion, have required the plaintiff to pay fifty dollars costs.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the defendant, The Prudential Insurance Company of America, 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 lYth day of July, 1903, granting the plaintiff’s motion to amend the summons and complaint in the action and to bring in as an additional party defendant Sara Fehrman, as administratrix, etc., of Max Fehrman, deceased.
    
      WilUam 0. Campbell, for the appellant.
    
      Walter Large, for the respondent.
   Patterson, J.:

The plaintiff was the holder of a policy of insurance upon the life of one Max Fehrman, now deceased. That policy was made payable “ unto the executors, administrators or assigns ” of the person named as the insured in the policy—that person being Max Fehrman. This action was brought to have the policy reformed by substituting for the'Words quoted the following: Unto Caroline Lampp (the plaintiff), her executors, administrators or assigns.” In the action as it was constituted no one representing' the interest of Fehrman was made a party. At the trial a motion Was made to dismiss the complaint, for the reason that no one representing the. assured named in the policy was before the court. That motion was denied, and on appeal to this court the ruling of the trial court was sustained (62 App. Div. 133); but on appeal to the Court of Appeals that tribunal held that the representatives of Fehrman were necessary parties, and that without them the action could not be maintained. Therefore, the judgment of the Special Term was reversed and a new trial was granted, with costs to abide the event (172 N. Y. 471). Thereupon the plaintiff made the present motion to bring in the representative of Fehrman, which was granted on the payment of ten dollars costs..

The only matter to be considered now relates to the terms imposed for allowing the amendment, and we think they are altogether inadequate. By the decision of the Court of Appeals, costs are not absolutely given to the defendant. They are to abide the event. The defendant has litigated a question involved in the case from fhe time of the trial until the decision by the Court of Appeals, and upon that question it has been successful.- Now it is sought to change the case in the aspect in which it was disposed of by the Court of Appeals, and to deprive the defendant of the benefit of its appeals, simply upon the payment of ten. dollars. That the amount involved in the action is small cannot affect the right of the defendant to some indemnity for the expense it has been put to in prosecuting its several appeals. The order should, therefore, be modified by requiring, as a condition for granting the motion, the payment of fifty dollars. As thus modified the order should be affirmed, without costs of this appeal.

Hatch and LaughliN, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.

Ingraham, J.

(dissenting):

I concur with Mr.- Justice Patterson in allowing the amendment, but I do not think the terms upon which it is to be allowed are sufficient. The plaintiff was not entitled to any relief upon the cause of action alleged as determined by the Court of Appeals. The. defendant, therefore, is now entitled to a dismissal of the complaint, which would cover costs of the action, including costs of the two appeals. If the plaintiff is now permitted to amend so as to obviate the objection that has been held to be fatal to any recovery, the defen dank should 'certainly 'be'alto wed' tlic'costs of-th"$:"a"'cti"0"n”"iirclnding the cosijs of appeals; and I think that thh payment of siicli costs should be^tlie condition upon which théjameñdnieñt" is allpi^ea.

"Van Brunt, B, J-.

(dissenting).:

I dissent, It seems, to me. the height of. injustice to impose only fifty dollars costs as terms of. amendment, when by such amendment there may be imposed, on the defendant costs and. disbursements for hundreds of,- dollars in respect to proceedings in which if has been successful. " '■ "

Order, modified, by, requiring, as a condition of granting the motion the payment of fifty dollars, As thus modified order affirmed, without costs of appeal, ...... „ .  