Opinion
July Term, 1903.
Present — Van Brunt, P.J., (dissenting); O'Brien, Ingraham, McLaughlin and Hatch, JJ.
Order modified as directed in opinion, and as modified affirmed, without costs.
The order appealed from is modified by requiring the plaintiffs, as a condition of the amendment, to pay all the taxable costs in the action to the time the amendment was made, and as thus modified, affirmed, without costs to either party.
I dissent. There is not the slightest particle of evidence to show that all the facts in the amended complaint were not known to the plaintiffs at the time of the commencement of the original action; and the rule is well settled, except in this department, that where such is the case a motion to amend should be denied.