
    Frank J. Steffe, Respondent, v. Frederick W. Heinzer and Others, Appellants, Impleaded with Thomas A. Mahar, Defendant.
    First Department,
    May 2, 1913.
    Practice — amendment where complaint fails to state cause of action — costs.
    A trial court, having determined that a complaint does not state facts sufficient to constitute a cause of action, should not allow an amendment, unless the defect is one of form which can be cured on the trial without changing the issues or prejudicing the defendant.
    In a case where the defect is not one merely of form, the trial court should give leave to the plaintiff to apply at Special Term for an order permitting the service of an amended complaint, where proper terms may be imposed.
    Appeal by the defendants, Frederick W. Heinzer and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1913, granting the plaintiff leave to serve an amended complaint, without the payment of costs.
    
      Isaac Josephson of counsel [Julius D. Tobias, attorney], for the appellants.
    
      Edgar A. Pollack of counsel [Benjamin S. Catts, attorney], for the respondent.
   Per Curiam:

This was an action for false imprisonment. It came on for trial at Trial Term. After a jury had been selected and sworn the defendants moved to dismiss the complaint upon the ground that it failed to set forth facts sufficient to constitute a cause of action. The court granted the motion. Thereupon the plaintiff moved for leave to withdraw a juror and for leave to amend his complaint. Ho proposed amendment was submitted or dictated to the stenographer. The court granted the motion and directed that plaintiff, serve an amended complaint on. or before the 20th of February, 1913, without costs; that plaintiff should not he required to file a new note of issue or notice of trial; the action-he placed on the day calendar for the 28th of February, 1913.

The learned trial court having determined that the complaint did not state facts sufficient to constitute a cause of action ought not to have allowed the service of an amended complaint, unless the defect was one merely of form which could properly have been cured on the trial without changing the ■ issues or prejudicing the defendant. ■ In a more serious case the trial court should have given leave to the plaintiff to apply at the Special Term for an order permitting the service of an amended complaint, where proper terms could have been imposed, upon granting the favor asked. The complaint being insufficient, as determined by the trial court, defendants had the right to rely upon its insufficiency and to move, at the opening of the case, for a dismissal, and should not be punished for exercising their legal rights by the-withholding of costs upon the granting of a motion to amend.

The order appealed from should be reversed, with ten dollars costs and disbursements, the motion for leave to amend denied, with ten dollars costs, with leave to the respondent to apply to the Special Term for such leave upon proper terms.

Present—Ingraham, P. J., Clarice, Scott, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to apply at Special Term as stated in opinion.  