This is an appeal from two certain orders, one made by Hr. Justice Fitzsiinons, imposing' a condition on the plaintiff to amend his complaint,' and the other made by Hr. Justice Van Wyck, denying a motion to set aside a taxation of costs made by .the clerk of this court..
The action was one for negligence. On the trial the plaintiff recovered a verdict for $300. On appeal, the General Term of this court affirmed the judgment. On appeal to the Supreme Court, the Appellate Term reversed the judgment and ordered a new trial with costs to the appellant to abide the event.-
The plaintiff, before the trial, duly obtained an order granting leave to sue in forma pauperis, which order has ever since been in force.
The reversal was on the ground that the specific acts of. negligence alleged in the complaint were not proved on the trial, and, therefore, it was error to deny the defendant’s motion to dismiss, made at the close of the plaintiff’s case, and again at the close of the case.
On the motion to amend the complaint at the Special Term the judge had the undoubted right to impose terms on the plaintiff, notwithstanding the order permitting him to sue in forma pauperis. Moore v. Cooley, 2 Hill, 412; Elwin v. Routh, 1 Civ. Pro. 131.
The amount to be imposed would seem to be settled by the case of Walton v. Mather, 10 Misc. Rep. 216, and cases therein cited.
The ajDpellant ingés with a good deal -of force and apparent consistency that the orders appealed from practically operate as a denial of - justice, insomuch as the costs taxed under the order of-*347October 12, 1896, and which were to be deducted from any judgment the 'plaintiff might recover on the trial, were $40 more than the recovery had_ at the former trial.
The Appellate Term reversed the Trial Term and the General Term, with costs against the plaintiff, who was protected, by a pauper order, to abide the event, and the event occurred when the plaintiff served a new complaint setting up a new cause of action, thereby to the effect abandoning the original complaint.
We have looked for some way to relieve the plaintiff from what seems to be a hardship, but the opinion of the court above, awarding costs, leaves nothing for us to do but to affirm the orders appealed from.
McCarthy, J., concurs.
Orders affirmed, with costs.