(dissenting):
I concur with Mr.- Justice Patterson in allowing the amendment, but I do not think the terms upon which it is to be allowed are sufficient. The plaintiff was not entitled to any relief upon the cause of action alleged as determined by the Court of Appeals. The. defendant, therefore, is now entitled to a dismissal of the complaint, which would cover costs of the action, including costs of the two appeals. If the plaintiff is now permitted to amend so as to obviate the objection that has been held to be fatal to any recovery, the *442defen dank should 'certainly 'be'alto wed' tlic'costs of-th"$:"a"'cti"0"n”"iirclnding the cosijs of appeals; and I think that thh payment of siicli costs should be^tlie condition upon which théjameñdnieñt" is allpi^ea.