Diebold v. Walter

Per Curiam:

As the case had been called for trial on the original complaint and this was found defective, and the learned judge thereupon permitted the withdrawal of a juror to the end that the plaintiff might move for leave to serve an amended complaint, we think that the terms imposed in granting the motion, namely, that only ten dollars costs of the motion be paid by the plaintiff; that the defendants — who were not in fault ■—■ should serve an answer in five days, thus depriving them of the time allowed by the Code of Civil Procedure to answer or demur, and that against their objection the case should be restored to its place on the day calendar, were too lenient to the plaintiff and boro too harshly on the defendants. By the amendment, which in effect states a new cause of action, the plaintiff is enabled to seek a recovery upon a different theory based on facts not included in the original complaint. The defendants having been obliged to prepare and attend' one trial, we think that the most favorable view to the plaintiff upon the facts would be to require her, in addition to the ten dollars costs of motion, to pay a trial fee and to allow the defendants twenty days in which to answer the amended complaint; the case, upon service of the answer, to take its regular place on the calendar and not to be restored to the day calendar.

In these respects, we think, the order should be modified, and as. so modified affirmed, with ten dollars costs and disbursements to. the appellants.

Present — Van Brunt, P. J., O’Brien, Ingraham, McLaughlin and Laughlin, JJ.

Order modified as directed in opinion, and as modified affirmed^ with ten dollars costs and disbursements to appellants.