¶1The modification directed in the order appealed from, as to the terms on which the plaintiffs should have leave to amend their complaint and continue the action in the names of two of them, was made upon the supposition that the judgment appealed from was in the plaintiffs’ favor, while the fact is that the judgment was against the plaintiffs and reversed by the commission of appeals, because the facts proved, beyond controversy, entitled them to relief in the action. This difference renders the reason given for the modification wholly inapplicable; for, by the reversal of the judgment against the plaintiffs and the ordering of a new trial, the court must have designed to have it understood that a recovery might be had by them which the law would allow to be maintained. Upon that state of the case the costs awarded by the decision would be more likely to be recovered by the plaintiffs than the defendants; and the amendments, so far as they changed the form given to the action by the complaint, would not deprive the defendants of any advantage secured by them in the case. The facts still remain essentially the same as first alleged, though more minutely and particularly stated. The case involved in the action, upon the substantial rights demanded, depends upon the same leading circumstances, and the answer already served seems to be well adapted to the trial of the case in its altered form. The demand of judgment, it is true, differs very materially from the one inserted in the original complaint j but in an action at issue upon the facts that is not a circumstance of very great importance, because the court can award any relief consistent with the facts in that condition of the action without reference to the form of judgment demanded by the complaint. Code, § 275. *178The amendments allowed, as already held, were within the power of the court over the action on special motion made on notice for that purpose. Beardsley v. Stover, 7 How. 294; Troy & Boston R. R. Co. v. Tibbitts, 11 id. 168; Union National Bank v. Bassett, 3 Abb. N. Y. 359; Degraw v. Elmore, 50 N. Y. 1, where it is assumed that the special term possesses such power over actions pending in this court. Id. 5.
¶2As the probabilities resulting from the reversal of the judgment against the plaintiffs are, that they would upon another trial not only recover a judgment for substantial relief, and with that the costs awarded to abide the event, by the decision of the court of appeals, they ought not to be required to pay such costs to the defendants as a condition for the privilege of making amendments that may in the end entitle them to nothing more than the court might give without them.
¶3They were allowed to be made without prejudice to the proceedings already had in the action; for that reason, as the answer puts in issue all the facts alleged in the complaint, no amendment of it will probably be required for the proper presentation of the defendants’ rights, or the protection of their interests; nor can any other serious inconvenience be imposed upon them by the amendments, while they allow a more complete statement to be made of the facts of the case, as they have'already been proved to be, and an adaptation of it to the additional rights of the remaining plaintiffs arising out of the assignment of the other interests to them.
¶4The costs'required to be paid to the defendants on account of these changes cannot, from any thing appearing before the court, be held to be inadequate to the advantages which they may be deprived of by méans of the amendments. The discretion existing on the subject cannot be said to have been improperly exercised in the adjustment of the terms provided for.
¶5The direction already given should therefore be so far changed as to require the order appealed from to be affirmed. .
¶6Davis, P. J., and Westbrook, J., concurred.
¶7 Order affirmed.