
    Joseph Woermann, Resp’t, v. Berend Baas, Ex’r, Imp’ld, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Costs—Discontinuance.
    B., who had an estate for years in certain property under a will, with the privilege of buying at a specified price, having refused to purchase at the price named, the heirs brought an action of partitition, to which B. was made a party at his request. He answered, but before the case was noticed for trial the property was sold to another person, and an order was granted discontinuing the action on payment of ten dollars to B. Held, no error; that B. was not entitled to costs as matter of course even if the action had proceeded to judgment.
    Appeal from order allowing plaintiff to discontinue on payment to defendant Baas of ten dollars.
    One Bonthrop, whose heirs the parties hereto other than Baas are, died leaving a will by which he made Mr. Baas executor and gave him the use of his land for ten years, with the privilege after that time to purchase the same for $6,000. That time having passed, and Baas having refused to give more than $1,500 for the property, this action was commenced to partition the same, and Baas was made a defendant at his own request. He answered, alleging, among other matters, that it was his duty as executor to see that the proceeds were properly divided; that the proceeds of a sale thereof should be paid to him, and that his expenses and commissions should be paid therefrom.
    Before the case was noticed for trial the property was sold by the heirs to one Ditmars, and thereupon application to discontinue was made and the order in question granted.
    
      Benj. G. Hitchings, for app’lt; Frederick W. Molls, for resp’t.
   Barnard, P. J.

—If this action had proceeded to judgment Baas would not have been entitled to costs as a matter of course. The action was one in partition and Baas was the executor of the dead owner of the property. By this will Baas had an estate in the land for ten years with the right to purchase*at a sum named; $6,000. The ten years had expired and Baas refused to buy at that price. The heirs commenced partition and Baas was made a party defendant at his own request. The heirs sold the land and procured an order of discontinuance upon payment of ten dollars to Baas. There is no legal way to increase this allowance under the circumstances of this case.

The order should therefore be affirmed, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.  