We think that the court might very well have denied the motion to amend. It is conceded that, upon the record as it stands, the defendant must succeed, and that he has been compelled to go through a trial and an appeal in order to establish the correctness of his position; and as has been said in the case of Mc-Entyre v. Tucker (decided herewith) 58 N. Y. Supp. 146, he is entitled to be reimbursed for the proceedings by which he was enabled to establish his defense.
We think, therefore, that the order should be modified by requiring, as a condition of amendment, that all the costs of the action, including those of the. appeal, subsequent to the service of the complaint, should be paid. The order, as so modified, should be affirmed, without costs. All concur.