¶1We think in this case the court at special term not only had the power to grant the order appealed from, but that it was a wise exercise of the power to grant the amendment, and that the terms were just and proper. It is not improbable that if the plaintiff had requested that he be allowed to discontinue, as a part of the terms for allowing the amendment, he might have been permitted to do so, but it does not appear that any such request was made, and it is now too late to made that objection; besides, we think the terms were severe enough to meet the demands of justice in the premises. It was not too late for the defendant to make the motion to amend her answer, as Code, § 723, provides that the court may upon the trial, or at any stage of the action, “… amend any process or pleading. ” To deny the power of the court to make such an amendment challenges its power to do justice.
¶2Order affirmed, with costs. All concur.