SIRE v. SHUBERT.
(Supreme Court, Appellate Division, First Department.
March 14, 1913.)
Dismissal and Nonsuit (§ 37)—Amendment of Answer—Delay—Alternatives to Plaintiff.
After numerous appearances and a delay of about a year, on allowing defendant’s motion to be permitted to amend his answer pleading limitations on payment of costs, plaintiff should have been allowed the alternative of a discontinuance without costs.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 68, 72, 73; Dec. Dig. § 37.*]
Appeal from Special Term, New York County.
Action by Henry B. Sire against Lee Shubert. From an order allowing defendant to. amend his answer, the plaintiff appeals. Modified and affirmed.
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.
Franklin Bien, of New York City, for appellant.
William Kline, of New York City, for respondent.
PER CURIAM.
The answer herein was served on November 25, 1911, and the reply on December 1, 1911. After numerous appearances on the calendar, the case was marked “ready” on the day calendar of December 24, 1912. On December 31, 1912, an order to *842show cause was granted returnable January 3, 1913, for an order permitting the defendant to serve an amended answer setting up the statute of limitations. The motion was granted upon payment of taxable costs without prejudice to the present position of the case on the calendar. We think after such delay the plaintiff should have been allowed the alternative of discontinuance without costs.
The order appealed from should therefore be modified by providing that the motion be granted upon the terms stated, with leave to. the plaintiff to discontinue without costs, and as so modified affirmed, without costs.