#### Louis Rosenberg and Philip Sherry, Respondents, *v.*Jennie Feiering, Appellant.

Second Department,

February 28, 1908,

Pleading — amendment — terms —■ appeal — réview of discretion of County Court.-

When the judgment in an action by a vendee of lands'for specific performance or the return of the earnest money has been reversed because the plaintiff’s objection to title, upon which the judgment was based, was not alleged in the complaint, the plaintiff should be allowed to amend to set out the true grounds of objection, conditioned, however, on the payment of all costs and disbursements of the action antecedent to the amendment, and ten dollars costs of motion. ' .

The Appellate Division may review the discretion of thé Ooúnty Court in imposing terms on the amendment of a pleading.. ..

Appeal by the defendant, Jennie Feiering, from an order of the County Court of Kings county, entered in the office of .-the cleric of the county of Kings on the 30th day of November, 1907.

*Isidor Cohn-,*for the appellant.

*Isaac Miller,*for the respondents.

Jenks, J. :

' The appeal .is from an order of the County Court of Kings' county permitting the plaintiffs to serve an amended complaint tin payment of thirty-five dollars costs. . The action is by purchaser against seller of realty for specific performance or in the alternative for the deposit, money and incidental expenses. The plaintiffs gained a judgment, which we reversed. *(Rosenberg v. Feiering,*121 App. Div. 190.) The case may be read in that book and "need not be gone over again. We reversed the judgment because the plaintiffs failed to show that they took the objection to the title upon which alone judgment was given for - them,, and if they did it was not charged as a ground of complaint.

This application was to amend the Complaint to cover the defects which were pointed out in our judgment. The plaintiff Louis Rosenberg, as affiant, showed that he raised this- objection mainly and as the particular one on the law day for closing the title, and he was cor*523roborated by his attorney. The attorney also deposed that he did not think that it was necessary to plead this fact, as it was a matter of evidence. It does not appear when he raised the point upon the tidal that he was met by objection that it was not pleaded. The opposing affidavits did not directly deny that the objection was raised at the time appointed for the closing of the title. I think that the order may be sustained, as the amendment is material and in the furtherance of justice. *(Cunliff v. D. & H. Canal Co.,*4 N. Y. St. Repr. 775; Nichol N. Y. Pr. § 904.) Speaking of the authority conferred by section 723 of the Code of Civil Procedure, the court in *Muller*v. *City of Philadelphia*(113 App. Div. 96) say: “ The power thus conferred is usually, as it ought to be, freely exercised in order that justice may be done between the parties. Merely technical rules of pleading no longer control, and the merits of an action and the rights of parties are now rarely determined upon affidavits.”

But I think the terms imposed were inadequate. It is said that we cannot vary them because they were imposed in the discretion of the County Court. But I think that the question of terms affects a substantial right and that it is subject to our review. (See *Kilts*v. *Neahr,*101 App. Div. 317, citing *Cramer*v. *Lovejoy,*41 Hun, 581; *Clark*v. *Eldred,*54 id. 5, and *New*v. *Aland,*62 How. Pr. 185.) In *Clark*v. *Eldred (supra)*the court-say: “We think, also, that there are cases where the terms imposed on granting relief may be so contrary to those established by law and practice as to justify a review in this court. *(O'Brien*v. *Long,*49 Hun, 81.)” ■ I think that the terms should have required the payment of all costs and disburseméuts of the action antecedent to the granting of the application, and of $10 costs of the application. *(Herbert*v. *De Murias,*115 App. Div. 453; *McEntyre*v. *Tucker,*40 id. 444; *Bates*v. *Salt Springs Nat. Bank,*43 id. 321; *Lindblad*v. *Lynde,*81 id. 603; *Ruellan*v. *Stillwell,*28 Civ. Proc. Rep. 243; *Cramer v. Lovejoy,*41 Hun, 581; *Rodgers*v. *Clement,*58 App. Div. 54; *Tradesmen's Nat. Bank*v. *Curtis,*63 id. 14.)

Woodward, Hooker, G-atnor and Rich, JJ., concurred.

Order of the County Court of Kings county modified in accordance with opinion, and as modified affirmed, without costs.