Opinion
February 28, 1908.
Isidor Cohn, for the appellant.
Isaac Miller, for the respondents.
The appeal is from an order of the County Court of Kings county permitting the plaintiffs to serve an amended complaint on payment of thirty-five dollars costs. The action is by purchaser against seller of realty for specific performance or in the alternative for the deposit money and incidental expenses. The plaintiffs gained a judgment, which we reversed. ( Rosenberg v. Feiering, 121 App. Div. 190.) The case may be read in that book and need not be gone over again. We reversed the judgment because the plaintiffs failed to show that they took the objection to the title upon which alone judgment was given for them, and if they did it was not charged as a ground of complaint.
This application was to amend the complaint to cover the defects which were pointed out in our judgment. The plaintiff Louis Rosenberg, as affiant, showed that he raised this objection mainly and as the particular one on the law day for closing the title, and he was corroborated by his attorney. The attorney also deposed that he did not think that it was necessary to plead this fact, as it was a matter of evidence. It does not appear when he raised the point upon the trial that he was met by objection that it was not pleaded. The opposing affidavits did not directly deny that the objection was raised at the time appointed for the closing of the title. I think that the order may be sustained, as the amendment is material and in the furtherance of justice. ( Cunliff v. D. H. Canal Co., 4 N.Y. St. Repr. 775; Nichol N.Y. Pr. § 904.) Speaking of the authority conferred by section 723 of the Code of Civil Procedure, the court in Muller v. City of Philadelphia ( 113 App. Div. 96) say: "The power thus conferred is usually, as it ought to be, freely exercised in order that justice may be done between the parties. Merely technical rules of pleading no longer control, and the merits of an action and the rights of parties are now rarely determined upon affidavits."
But I think the terms imposed were inadequate. It is said that we cannot vary them because they were imposed in the discretion of the County Court. But I think that the question of terms affects a substantial right and that it is subject to our review. (See Kilts v. Neahr, 101 App. Div. 317, citing Cramer v. Lovejoy, 41 Hun, 581; Clark v. Eldred, 54 id. 5, and New v. Aland, 62 How. Pr. 185.) In Clark v. Eldred ( supra) the court say: "We think, also, that there are cases where the terms imposed on granting relief may be so contrary to those established by law and practice as to justify a review in this court. ( O'Brien v. Long, 49 Hun, 81.)" I think that the terms should have required the payment of all costs and disbursements of the action antecedent to the granting of the application, and of $10 costs of the application. ( Herbert v. De Murias, 115 App. Div. 453; McEntyre v. Tucker, 40 id. 444; Bates v. Salt Springs Nat. Bank, 43 id. 321; Lindblad v. Lynde, 81 id. 603; Ruellan v. Stillwell, 28 Civ. Proc. Rep. 243; Cramer v. Lovejoy, 41 Hun, 581; Rodgers v. Clement, 58 App. Div. 54; Tradesmen's Nat. Bank v. Curtis, 63 id. 14.)
WOODWARD, HOOKER, GAYNOR and RICH, JJ., concurred.
Order of the County Court of Kings county modified in accordance with opinion, and as modified affirmed, without costs.