At the trial the defendant was permitted on his own motion to amend his answer, on payment of plaintiff’s costs accrued after the original answer was served. Those costs being the costs after notice of trial, and the term fees for the terms at which the case had been on the calendar, were paid accordingly by the defendant to the plaintiff and the answer was amended. Subsequently the cause was tried and a verdict was rendered which entitled the defendant to costs. He included in his bill the same term fees and costs, after notice,of trial, which he had paid as a condition of his leave to *289amend. The clerk disallowed those items on taxation and his action was affirmed by the Special Term.
The disallowance was proper. The items in question, were finally disposed of by the order allowing the defendant to amend, he haring availed himself of the privilege granted by the order. The order was an adjudication that the items covered by it belonged to the plaintiff. They could not be again taxed in favor of either party. (Provost v. Farrell, 13 Hun, 303.) The cases of Havemeyer v. Havemeyer (62 How., 476) and Donovan v. The Board of Education (1 Civil Pro. R., 311, note) are cited by the appellant’s counsel. The first of them was disposed of upon facts peculiar to itself, which do not exist in this case. We are not prepared to concur with the case of Donovan (decided at a Special Term of the New York Superior Court) so far as it conflicts with the views above expressed.
Order affirmed, with ten dollars costs and disbursements.
Hardin and Baekke, JJ., concurred.So ordered.