
    The People of the State of New York ex rel. William J. Morgan, Respondent, v. Theodore A. Bingham, as Police Commissioner of the City of New York, Appellant.
    First Department,
    November 23, 1906.
    Mandamus—right of relator to discontinue — improper recitals in order.
    . A. relator, on a writ of mandamus to compel bis reinstatement to service on a municipal police force, has-a right to discontinue the proceeding, but the order of discontinuance should not contain the recital “without prejudice to a new ■ proceeding,” The right to such new proceeding must he determined upon the papers presented therein.
    Appeal by the defendant, Theodore A.. Bingham, as police .commissioner of the city of Heiv York, from-an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the. clerk of the county of Hew York on the 22d day of June, 1906, granting the relator’s motion for leave to discontinue the above-entitled proceeding upon payment of costs, without prejudice to a new proceeding.
    
      Terence Farley, for the appellant.
    
      Frank Moss, for the respondent.
   McLaughlin, J.:

The relator was formerly an active member of the police force of the city of Hew York, and was retired and ,placed upon the retired list.with a pension.. Subsequently he instituted this proceeding by notice of motion to obtain a writ of mandamus requiring the defendant, as police commissioner, to reinstate him in his'former position. After the motion had been argued, but before the same had been determined, he sought to discontinue- the proceeding, but the corpo- ■ ration counsel refusing -to give hi§ consent, a motion was made for that purpose. The motion was granted and there was inserted in ' the order a provision that the proceeding was discontinued without prejudice to a new proceeding.” From this order the defendant appeals. .

It. is difficult to see what objection the defendant would have to the discontinuance of.the proceeding.- Certainly the relator had a right to discontinue if he saw fit. Defendant was not injured. It was, in effect, a confession on the part of the relator that upon the papers presented he was not entitled to the relief asked. He, however, was not entitled to have inserted in the order the words without prejudice to a new proceeding.” Whether in a new proceeding he would be entitled to the writ must be determined from the papers there presented, unaffected'by the order permitting this proceeding to be discontinued. This we, in effect, held in People ex rel. Allen v. York (84 App. Div. 440) and People ex rel. Arfken v. York (106 id. 590). These words were improperly inserted in the order. Therefore, the order should be modified by striking them out, and inasmuch as the defendant has appealed from the whole order, the modification should be without costs to either party.

The order appealed from, therefore, is modified by striking out of "it the words without prejudice to a new proceeding,” and as modified the same is affirmed, without costs to either party.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, .without costs. Order filed.  