RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

him, and upon a suspension of the trial at plaintiff's request he left the state so that the defendants were unable to serve him with summons to commence a second action.

Wilder v. Boynton, 63 Barb. 547.

A plaintiff will not be allowed to discontinue his action where the defendant has filed an answer admitting the plaintiff's claim but interposing a counterclaim for an amount larger than plaintiff's claim, and plaintiff, after a trial in which the jury disagreed, continued the prosecution of the action, and the defendant is the real actor in the litigation, the only real difference between the parties being upon the counterclaim, and the fact that the defendant, a resident of New York, has, pending the action, commenced another action for the same cause in the state of the plaintiff's domicil wherein no trial has been had, in itself affords no reason for discontinuing the first action.

Wanamaker v. Megraw, 27 Misc. 591; 93 St. Rep. 81; 59 Supp. 81. For note on "Discontinuance of Suit after Counterclaim," see 6 Ann. Cas. 102.

d. Terms.

The supreme court may in its discretion allow a discontinuance with or without costs or it may impose burdens in addition to the taxable costs að a condition of discontinuance.

Staiger v. Schultz, 3 Keyes, 614.

De Barante v. Deyermand, 41 N. Y. 355; 40 How. Pr. 180.

In re Waverly Water Works, 85 N. Y. 478.

Hoffman v. Ridley, 4 Civ. Pro. 41.

A plaintiff may at his election refuse to accept the terms imposed as a condition of a discontinuance of the action and elect not to discontinue. Society of the N. Y. Hospital v. Coe, 15 Hun, 410.

This is particularly the case where the defendant has obtained an order granting an additional allowance over and above the costs.

Id.

The court upon application for a discontinuance will decide whether the plaintiff may discontinue his action and fix the terms which will depend upon the nature and character of the defendant's answer.

Society of the N. Y. Hospital v. Coe, 15 Hun, 440.

One suing a school trustee for wages as a school teacher will be allowed to discontinue without costs where the trustee resigned the day previous to the demand of payment, but gave the plaintiff no intimation of that fact and led him to believe by his conduct that he was still trustee.

Smith v. Britt, 8 Week. Dig. 76.

A plaintiff will be allowed, in the exercise of the sound discretion of the court, to discontinue an action without costs where the defendant and his attorney, when refusing to pay the demand, withheld from the plaintiff information of a release of the cause of action, of which release the plaintiff

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

was ignorant and after suit brought omitted to plead it in the answer but disclosed it to the plaintiff only when the cause was brought for trial and claimed the right to use it as a defense to the action.

De Barante v. Deyermand, 41 N. Y. 355, 4 How. Pr. 180.

The plaintiff in an ejectment suit will not be allowed to discontinue upon payment of costs where he had recovered a judgment and been put in possession of the lands and the defendant has paid the costs and taken a new trial under the statute.

Carleton v. Darcy, 75 N. Y. 375.

If before the service of an order allowing the party to discontinue on payment of costs the defendant has noticed the cause for trial, the notice of which was served on the plaintiff before the defendant received the order of discontinuance, the defendant is entitled as a part of the costs of the discontinuance to the fee for proceedings subsequent to notice of trial.

Hall v. Lindo, 8 Abb. Pr. 341.

Upon the entry by the plaintiff of an order of discontinuance on payment of costs and notice thereof to defendant, the latter is not entitled to costs for entering up judgment, but only such costs as had accrued at the time notice of discontinuance was received.

Harden v. Hardick, 2 Hill, 384.

It is not within the province of the special term to permit the plaintiff to discontinue an action involving the title to real estate without costs where the general term reversed a judgment obtained by plaintiff below and granted a new trial and awarded costs to abide the event.

Van Wyck v. Baker, 11 Hun, 309.

An order in condemnation proceedings requiring the plaintiff to pay to the land owner his expenses, charges and counsel fees to which he had been subjected in the action, as a condition of a discontinuance, where the case had proceeded to the making of the report of the commissioners appraising the defendant's damages, is a reasonable condition and one which the court in the exercise of its discretion had a right to make.

In the Matter of the Application of the Waverly Water Works Co., 85 N. Y. 478.

Plaintiff will not be allowed to discontinue an action while the amount of the costs is in dispute and unpaid after a new trial has been granted by the general term upon payment of costs.

North v. Sargeant, 14 Abb. Pr. 223.

A plaintiff cannot dismiss his complaint without costs even if the defend. ant leaves the state thereby defeating the object of the action.

Palmer v. Van Doren, 2 Edw. 384.

A plaintiff in an action against several defendants on contract will be allowed to discontinue upon payment of one bill of costs, as to defendants whom the trial disclosed were not liable although they joined with the others in a joint answer.

Marks v. Bard, 1 Abb. Pr. 63.

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

A plaintiff in an action to declare a law relating to the construction of an electric-light plant in a certain city unconstitutional, to which the mayer, the members of the common council, the water commissioners having control of the electric-light plant and the city itself were all made parties, will be allowed to discontinue upon payment of one bill of costs to the city, its mayor and the common council whose interests were not hostile to each other, and one bill of costs to the water commissioners, where it was the duty of the city attorney to appear for the mayor and the common council as well as for the corporation itself, but all four appeared by separate counsel.

Hequembourg v. Bookstaver, 54 Hun, 88; 26 St. Rep. 479; 7 Supp. 217. A plaintiff will be allowed to discontinue upon payment of one bill of costs on the ground that certain defendants, made parties by amendment to the summons and complaint after issue joined as to the other defendants who all resided within the county, were not residents of the county, the defenses of all of the defendants being identical.

Exstein v. Robertson, 17 Civ. Pro. 23; 23 St. Rep. 1; 6 Supp. 429; 1 Silv. S. Ct. 169.

The county court has no power, in an action at law to recover money only, to permit a discontinuance thereof upon payment of motion costs of $10 only, as in an action of that nature the costs are not discretionary, but are regulated by statute.

Claflin v. Robertson, 23 St. Rep. 305; 6 Supp. 430; 1 Silv. S. Ct. 176.

The plaintiff in a foreclosure action will be permitted, on receiving the debt and costs, to discontinue without paying costs to prior encumbrancers who have appeared to protect to their rights or to the mortgagors personally liable for the debt, who have conveyed the mortgaged premises subject to the payment of the mortgage.

Gallagher v. Egan, 2 Sandf. 742.

The allowance of costs to the defendants on discontinuing a suit for the foreclosure of a mortgage before judgment rests in the discretion of the court.

Gallagher v. Egan, 2 Sandf. 742.

A plaintiff will not be allowed to discontinue an action to foreclose a mortgage even on payment of costs without serving a stipulation that the testimony of a deceased witness for the defendant, taken by stipulation before a referee before his death and considered as a complete defense to the action, might be used on the trial of any subsequent action which might be brought for the same cause.

Young v. Bush, 36 How. Pr. 240.

The plaintiff may be required as condition of discontinuance, after the defendant has answered setting up a counterclaim and where the non-resident plaintiff had failed to comply with an order requiring him to file security for costs, to pay whatever sum the court may deem just in addition to the taxable costs as an extra allowance.

Tubbs v. Hall, 12 Abb. Pr. (N. S.) 237.

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continue.l.

An order of discontinuance with costs after appearance of defendant is ineffectual without payment of the defendant's costs, and if such costs when taxed are not paid the defendant may proceed in the suit and notice the cause for hearing and is not bound to make up a record of discontinuance and collect his costs, as on a judgment of non pros.

James v. Delavan, 7 Wend. 511.

A plaintiff will not be allowed to discontinue without costs as to a defendant who has appeared and against whom the complaint stated there was no personal claim, where no notice of "no personal claim" was served with the

summons.

Wohltman v. Goff, 15 Civ. Pro. 39; 4 Supp. 210.

It is not a ground for the exercise of the exceptional power possessed by the court to discontinue an action in which the plaintiff has failed, without the payment of costs, that although the decision of the court was against a recovery there were certain equitable considerations which ought to entitle the granting of such relief, where the facts relied on existed in the case from the beginning, of which the plaintiff must be conclusively charged with knowledge.

Clossey v. Ayers, 44 St. Rep. 53; 17 Supp. 278.

A plaintiff, after or as a part of a settlement, without notice to the receiver of a corporation, and without costs, may discontinue an action brought by him as a stockholder of the corporation against the trustees for malfeasance, where the receiver was purely a nominal party, had been unsuccessfully requested to bring the action in his own name, did not ask to be allowed to come in and receive the benefit of the action, but repudiated all responsibility and demanded that the complaint be dismissed with costs, and no affirmative relief was demanded as between any of the defendants. Beadleston v. Alley, 28 St. Kep. 89; 7 Supp. 747; Aff'd 119 N. Y. 659; 23 N. E. 1150.

A plaintiff who is allowed to discontinue upon motion made when the case comes on for trial, with costs, is not compelled to pay a trial fee of $30.00 or disbursements for entry of judgment, filing transcript and issuing execution.

Studwell v. Baxter, 33 Hun, 331.

Where an action is voluntarily discontinued by plaintiff upon payment of costs after having been placed upon the calendar and before trial an additional allowance of $75.00 may be granted under § 308 of the Code of Civil Procedure.

Danenhover v. March, 4 Abb. Pr. 254.

A plaintiff's compliance with the conditions imposed for leave to discontinue, although under protest, is a waiver of the right to appeal from so much of the order as imposed the conditions complained of.

Dambmann v. Schulting, 6 Hun, 29.

The plaintiffs in an action to set aside an alleged fraudulent assignment and certain confessions of judgment claiming to be simple contract creditVII. N. Y. A. C.

29

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,

-e ntinued. ́

ors will be allowed to discontinue on payment of one bill of costs with a provision in the order of discontinuance that the plaintiffs were not entitled to the injunction secured by them, and that a referee be appointed to assess defendant's damages on account of the injunction, where in fact they were not creditors of the defendant, having prior to the commencement of the action parted with their claims.

Sweetzer v. Smith, 27 St. Rep. 628; 8 Supp. 156.

In Ackroyd v. Newton, 24 Misc. 424; 87 St. Rep. 682; 53 Supp. 682, the rourt said that it is almost the invariable rule in actions at law that the party desiring to discontinue must pay the accrued costs and a suit commenced against two defendants as co-partners, where it subsequently appeared that the debtor was a corporation, does not come within that class of cases, which are exceptions to the rule.

In an action to recover damages and abate a nuisance, the plaintiff will be allowed to discontinue upon payment of costs of opposing the motion of discontinuance and without other costs, where the case was referred to a referee who failed to make his report within the time allowed by statute upon the ground that he did not know how to decide the case, whereupon the defendant's attorney served a notice ending the reference, after which the motion to discontinue was made upon affidavits showing that the defendant had voluntarily abated some of the matters complained of, and it is clear that the action was instituted and prosecuted in good faith.

Locklin v. Casler, 52 How. Pr. 228.

The plaintiff in an action to restrain the defendants from enforcing. against the plaintiff a statute regulating the sale of intoxicating liquors within a certain district on the ground that the act is unconstituional and void will, in the exercise of discretion, upon determination by the court adverse to the plaintiff's claim, be allowed to discontinue without costs. Staiger v. Schultz, 3 Keyes, 616.

A plaintiff will be required to pay separate bills of costs to each of two defendants, as a condition of discontinuing the action, where the summons and complaint were not served on one until after the other had appeared and answered, necessitating a separate answer, essentially different from the other, although both appeared by the same attorney.

Mazet v. Crow, 24 Abb. N. C. 372; 18 Civ. Pro. 178; 31 St. Rep. 972; 10 Supp. 743.

An additional allowance may be made under § 309 of the Code of Civil Procedure where the plaintiff discontinues the action on payment of costs before trial in difficult and extraordinary cases.

Coffin v. Coke, 4 Hun, 616.

Robins v. Gould, 1 Abb. N. C. 133.

A plaintiff in a difficult and extraordinary action in whch a receiver was appointed for defendant's railroad and property and an injunction was issued and in which the latter filed a counterclaim to which plaintiff did not reply, will be required to pay an extra allowance of $2000. in addition to