It was proper ,to grant to the defendant Henry-Mass leave to serve the amended answer and to vacate the judgment against him. But because of the fact that he elected only to take advantage of the defense, which he now seeks to avail himself of, after a fair and full trial and the entry of judgment thereon, such relief should only have been granted upon payment of full costs and all disbursements, as taxed in the -judgment-roll, and ten dollars’ costs of motion.
The order appealed from must, therefore, be modified. Defendant must pay all such costs, disbursements and motion costs, and as so modified said order is affirmed, without costs ■ or disbursements to either party.-
Present: Fitzsimoes, Oh. J., Coexan and O’Dwyer, JJ.
Order modified, and as modified affirmed, without costs.