
    Telephonine Company of America, Appellant, v. John F. Douthitt, Respondent.
    First Department,
    November 5, 1906.
    Practice — when court cannot make leave to discontinue conditional — stipulation hot to assign action.
    In an action at law, where no counterclaim lias- been interposed and where no équities exist in favor of |lie defendant, the plaintiff has a right to discontinue on the- payment "of .costs. ' v.
    Ruder such circumstances, the court is without power to condition the discontinuance upon a stipulation by-the plaintiff not to assign the cause of action.
    
      It seems,' that when a'cause of action is assignable the right of the assignee to sue would not be affecte'd by such stipulation.
    Appeal by the plaintiff, the Telephonine Company of America, from-so much of 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 oh the 31st day of August, 1906, granting the plaintiffs motion to discontinue the above-entitled action, as imposes as a condition that the plaintiff stipulate that it will- not assign the claim herein for the purpose of a suit thereon, and that in case, of the failure to stipulate as aforesaid, the motion be denied, with costs.
    
      J. Harry Hull, for the appellant.
    
      Wayland E. Benjamin, for the respondent.
   Ingraham, J.:

This action was brought to recover $50,000 as the damages sustained -by the plaintiff by a refusal .of the defendant to perform a contract in relation to certain patents owned -by'.the plaintiff. Before an. answer was interposed, the plaintiff applied to discontinue-the action and the costs were tendered, but the defendant refused to receive"the costs on the ground that the plaintiff intended to assign the action to a resident of Hew Yolk so as to be relieved of the obligation to give security for costs. Upon the application to discontinue the action the. court required as a condition that the' plaintiff should, stipulate not to “assign the claim made herein-for the purpose of suit thereon.” I think that it is quite clear that the court was without authority to impose such a condition. Plaintiff’s demand was an assignable chose in action, and the right of an assignee of a chose in action to enforce it would not be affected by any such stipulation if given. The rule is general that in an action at law where no counterclaim has been interposed and. when no equities exist in favor of the defendant, the plaintiff has the right to discontinue the action on payment of costs. Counsel for the respondent cites Matter of Waverly Water Works Co. (85 N. Y. 478) which was an application to discontinue a special proceeding to acquire title to lands under the right of eminent domain. It was there stated that the general rule is : “ When an action or special proceeding has been commenced the defendant may have an interest- that it shall be conducted to its termination, and in such case the court can protect such interest by refusing to permit the action or proceeding to be discontinued, or it may impose such reasonable terms as a condition of discontinuance as will fully protect or indemnify the defendant.” In Matter of Butler (101 N. Y. 307), where an application was made for leave to discontinue a proceeding requiring the committee of a lunatic to account, the Court of Appeals said: Ordinarily, a suitor' has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court. A party should no more be compelled to continue a .litigation than to commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance.” And the court reversed the order denying the motion to discontinue and granted the motion.

To justify the court in refusing an application to discontinue an action at law it must appear that the defendant had some right or equity which requires that .the action should be continued until its termination.

There is nothing here to show that the defendant was entitled to have this action continued. The defendant does not claim that he has a counterclaim which he would lose his right to enforce if the action was discontinued. If plaintiff did not wish to proceed it could suffer a nonsuit and its right to assign the cause of action or to commence a new action would not at all be affected. There was nothing that appeared that would justify the court in this case in refusing to allow a discontinuance on the usual terms, namely, upon the payment of costs, and' certainly the court has nó power to-impose conditions impossible to enforce. "With the motive of the plaintiff for wishing to discontinue the action the court has nothing to do.

. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion allowing the action to bé discontinued upon payment of actual costs granted. .

O’Brien, P. J., Laughlín, Clarke and Scott, JJ., concurred!

Order reversed,, with1 ten dollars costs and disbursements, and motion granted allowing action to be discontinued on payment of actual costs., . .  