¶1Decided that the amendment ought to be allowed, and granted the motion, on the Plaintiff’s paying $5 to Defendant for his “ proceedings before notice of trial,” as allowed by the 262d section, and also $10 for costs of resisting the motion, as provided by section 270. The Defendant to have leave to answer to the complaint as amended. The justice decided the $6, claimed by the Defendant, not being a disbursement chargeable by statute against the unsuccessful party, ought not to be included in the terms imposed on the Plaintiff. That in cases of amendment under the 149th section, the party asking to amend ought to be required to make the opposite party good, by paying him the fees as fixed by statute for the additional expense which the amendment would render necessary.
3 How. Pr. 296
Hare v. White
Decided September 22, 1848
New York Supreme Court · decided 1848-09-22
This was a motion on the part of the Plaintiff to amend the summons and complaint in this cause under the 149th section of the code of procedure. It appeared by the affidavits presented on the hearing of the motion, that the suit was commenced since the first day of July, and that an answer had been put in on the 11th August last, and that subsequently the testimony of a witness had been taken de bene esse on the part of the Plaintiff.
Decided 1848-09-22