Galowitz v. Magner 213 A.D. 835

While the decision at Special Term undoubtedly applied the general rule in granting an amendment to the complaint, we think the facts in tfche present case are exceptional, and that the rule should not be applied. The judgment was not reversed in this court because of any deficiency in the complaint. The point was not raised by the appellant upon the appeal. It was pointed out by the court as desirable before a new trial [208 App. Div. 6.] Under these circumstances, we think defendant should not be allowed costs to date as imposed by the order appealed from. The order is, therefore, modified by imposing thirty dollars .costs as a condition for allowing the amendment, and as so modified affirmed, without posjis,. Kelly, P. J., Manning, Kelby, Young and Kapper, JJ., concur.