
    Samuel P. Knapp, respondent, v. Ulrich Simon, Imp., &c., appellant.
    
      Decided January 13, 1885.
    Appeal from an order, allowing plaintiff to amend complaint by adding anew cause of action. H. W. Bookstaver, for appellant. D. M. Porter, for respondent. The court at general term, after reviewing the history of the case, held :—■“ On the whole, the history of the case discloses that the defendant has not, up to the trial of the proposed amendment, been called to litigate the rights of the plaintiff, under the alleged special agreement, and that the leave to amend should have imposed as a condition the payment of the costs of the action up to the time of amendment, excepting any allowances that may have been granted, and also the cost of the appeals that have been argued ; with $10 costs of the motion for leave to amend. ”
   Opinion by Sedgwick, Ch. J., Van Vorst and Freedman, JJ., concurred. Order below modified, in the manner directed, and as modified affirmed, with $10 costs of appeal to defendant.  