Opinion
March 17, 1950.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Appeal by plaintiff from so much of an order of the Rensselaer Special Term which imposed upon plaintiff the payment of all taxable costs to date as a condition for leave to amend her complaint. Defendant also appeals from so much of said order as denied its cross motion for leave to set up a defense of the Statute of Limitations in an amended answer, if plaintiff's motion for leave to amend her complaint was granted, and for judgment dismissing the complaint under rule 107 of the Rules of Civil Practice. It appears that the taxable costs to date, imposed by the terms of the order upon plaintiff, amount to $421.18. We think this amount is excessive as a condition precedent for leave to amend the complaint. We agree with the Special Term that the proposed amendment does not set up a new cause of action, and hence it was proper to deny defendant's cross motion for leave to amend its answer so as to interpose the Statute of Limitations as a defense and for judgment dismissing the complaint. The order is modified, on the law and facts, by reducing the condition imposed to payment by the plaintiff of the sum of $50 within ten days from the entry of an order herein, and, as so modified, is affirmed, without costs.