Van Wyck, Ch. J.
At trial the justice granted plaintiff leave to amend complaint, with $20 costs to defendant to abide the event; but upon defendant’s counsel claiming surprise, this ruling was withdrawn and plaintiff allowed to withdraw a juror, with leave to move at Special Term for leave to amend. The motion at Special Term was granted upon condition that plaintiff, within tén days, pay $30 to defendant’s attorney, and it is from the order granting the motion that defendant now appeals. The amendment, if necessary, should have been allowed at trial, and its allowance at Special Term was a proper exercise of discretion, for it does not change the cause of action, which is still in replevin. The order is affirmed, with $10 costs.
Scotchman, J., concurs.
Order affirmed, with $10 costs.