¶1I think the terms imposed as a condition of the amendment too-large in amount. The sum imposed by the Special Term seems tome all that was essential to fairly reimburse the defendant. In the judgments rendered by the Appellate Division and by the Court of Appeals no costs were imposed as against either party although the defendant succeeded. It is evident that the court was impressed with the view that equitable considerations did not authorize their *57imposition; so equitable considerations, in my opinion, ought to operate against the terms imposed here. I think substantial justice would be accomplished by the affirmance of the order.
¶2O’Brien, J., concurred.
¶3Order modified as directed in opinion, and as modified affirmed,, without costs.