SCOTT, P. J.
The case is no different now from what it was on the former appeal, and the judgment is therefore right, unless the plaintiff can prevail by reason of the denial of his motion to amend the complaint. Such a motion is addressed to the discretion of the court below, and the determination thereon by the court below will not ordinarily be interfered with, unless such discretion has been abused. After the determination of the first appeal the plaintiff could hope to recover only by pursuing one of two courses. He might have paid the judgment for costs and commenced a new action, or could proceed in this action if he could get permission to aménd his complaint radically, by setting up an entirely new cause of action. He chose the latter alternative. If the action had been pending in this court, wherein there is no statutory limitation upon the power to impose conditions, the amendment would probably not have been allowed except upon payment of all costs to date. The justice imposed that condition in granting the motion, and his action was criticised by this court, not because the condition was unreasonable, but because he exceeded the statutory authority of the Municipal Court. Upon a reargument of the motion to amend the complaint, the justice found that he could not impose adequate terms if he granted the order, and must therefore deny the motion or grant- it upon most inadequate terms. He chose the former course, and, as I think, rightly. The defendant had succeeded in defeating absolutely the plaintiff’s claim upon the pleadings as they stood, and should not be deprived of the fruits of his success except upon reasonable terms. The denial of the motion to amend did not preclude the plaintiff from recovering upon a proper complaint, but merely required him to pay the costs of the former litigation and commence de novo.
The judgment should be affirmed, with costs.
DOWLING, J., concurs.
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