
    Katherine Freeman Blood, Plaintiff, v. Frances Howard Sloan and Others, Defendants.
    County Court, Chautauqua County,
    November 20, 1934.
    
      Clinton 0. Tarbox, for the plaintiff.
    
      Leland Davis, for the defendant Frances H. Sloan.
   Ottaway, J.

Counsel have come into court by agreement informally and have asked that the court fix the allowance of costs to plaintiff on order of discontinuance.

The facts presented disclose that; this action was brought for the foreclosure of a certain mortgage. The sole basis for foreclosure was the non-payment of one tax assessment. The defendant here appearing has paid this tax levy. Counsel have agreed on discontinuance of the action. They agree that plaintiff is entitled to costs before notice of trial and all necessary and proper disbursements.

It is urged by the plaintiff that he is also entitled to one-half the percentages fixed by section 1512 of the Civil Practice Act. This section (subdivision 5) provides that where an action for foreclosure of a mortgage is settled before judgment, “ the plaintiff is entitled to a percentage upon the amount paid or secured upon the settlement, at one-half ” of the rates therein mentioned. Plaintiff’s contention is that upon this settlement the whole amount of this mortgage is secured by the continuation of the mortgage Defendant urges that no new security is given and hence no allowance under this section should be made.

We cannot concur with the plaintiff in his contention that any amount is secured on this settlement. The interest which has since been paid was not due at the time of the commencement of the action. No other amount of cash is paid upon this settlement and no new security is given. The security of the mortgage is one that was created with the giving of the mortgage. It is not a security which was obtained or created upon the settlement.” Hence through it no amount is “ secured upon the settlement.”

It follows that an order of discontinuance should include only costs before notice of trial and necessary disbursements. Of course no costs are allowed to either party on this motion.  