
    Edward S. Jaffray et al., App’lts, v. Samuel Goldstone, Survivor, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 30, 1891.)
    
    1. Discontinuance—Costs.
    Where a judgment in favor of the plaintiff is reversed by the court of appeals and a new trial granted, with costs to abide the event, this includes all costs up to that time, and the plaintiff may properly be required to pay the costs and an extra allowance as a condition of a.lowing him to discontinue.
    2. Same.
    It is improper in such case to direct that the action be dismissed on failure to pay such costs. All that the court can do under those circumstances is to deny the motion to discontinue.
    
      Appeal from order denying motion for leave to discontinue without costs and giving to defendant an extra allowance, and from order denying motion for re-taxation of costs.
    
      I. Q. Miller, for app’lts; W. A. Abbott, for resp’t.
   Van Brunt, P. J.

This action was brought to recover a balance alleged to be due to plaintiff from defendant for goods sold and delivered. Judgment was rendered in favor of the plaintiff, which judgment was affirmed by the general term, but was reversed by the court of appeals and a new trial ordered, with costs to abide event, and judgment was entered upon the remittitur. When the case was about to appear upon the day calendar for retrial the plaintiff obtained an order for the defendant to show cause why the action should not be discontinued without costs, or why the plaintiff should not have such other relief as might be just, and staying defendant’s proceedings. The defendant thereupon applied to the same judge who granted the previous order to show cause for an order requiring the plaintiff to show cause why an order should not be made granting the defendant an allowance of five per cent, upon the value of the subject matter involved in the action, and discontinuing the action with costs in favor of defendant against the plaintiffs and vacating the stay to the extent of permitting the defendant to make this motion.

Tiie two motions^ coming on together the court made the following order:

First. That the motion of plaintiffs for leave to discontinue this action without costs be, and the same hereby is, denied.

Second. That on the said motion of the defendant, the defendant is hereby allowed the sum of two hundred dollars ($200) by way of additional costs, said action being a difficult and extraordinary case.

I'hird. That the defendant is entitled to recover of the plaintiffs the full costs which he could tax if the complaint had been regularly dismissed upon a new trial on the merits.

Fourth. That this action be dismissed unless the plaintiffs pay said sum of two hundred dollars ($200) and said costs within ten (10) days after the taxation thereof.

The defendant thereupon taxed his costs, including a trial fee for the first trial, four term fees and the costs of appeal before the general term, to all of which items the plaintiff objected and made a motion for retaxation, which was denied, and from the two orders above mentioned this appeal is taken.

It is urged by the appellant that the granting of costs and extra allowance is adding to the judgment of the court of appeals, and that the sole duty of the special term was to enter exactly the order which the court of appeals directed, and that it-should neither add to nor take away therefrom, and that all that by the judgment of the court of appeals the defendant recovers are costs of the appeal, and not general costs of the action, nor is he entitled to an extra allowance.

In the case of Franey v. Smith, 126 N. Y., 658; 37 St. Rep., 480, to which this court has already had occasion to advert, the court of appeals laid down distinctly what, in their judgment, reversing an order with costs means, and what they intend when they reverse the judgment of the court below and grant a new trial, with costs to abide the event, which is the case at bar. 'They there state, “ where we reverse the judgment of the court below and grant a new trial in either an equitable or legal action, with costs to abide the event, all the costs of the action up to that time are intended.”

Therefore, if the plaintiff had failed to succeed upon a new trial, the defendant would have been entitled to tax all the previous costs, together with the costs of the appeal and the costs of the new trial. Now prior to the actual taking place of the new ¡trial the plaintiff makes an application for leave to discontinue without costs, or for such other relief as he might be entitled to; ¡and the court denied his motion to discontinue without costs, and granted the motion of the defendant for an extra allowance, and found that the defendant was entitled to the full costs, which he could have taxed if the complaint had been regularly dismissed upon a new trial upon the merits, and then that the action should be dismissed unless the plaintiff paid such allowance and costs.

It was undoubtedly the opinion of the court that the plaintiff should not be allowed to retire from this litigation without paying the costs which had accrued, and an extra allowance because of the character of the action.

The court had the right to determine upon what terms the plaintiff should be allowed to do this; and if the plaintiff was not satisfied with the terms, he could either appeal from the order, as he has done in this case, or he could go on with the action, refusing to accept the terms.

That the defendant, upon the dismissal of the complaint, would have been entitled to full costs under the decision we have already referred to, needs no comment; and that where an answer is put in, the plaintiff cannot retire without making himself subject to the payment of an extra allowance, is also equally well settled. And the rule that the motion for an extra allowance should have been made to the judge who tried the case has no application to a ■case of the character now before the court. Without any motion upon the part of the defendant, the court would have been entitled to impose an extra allowance as a condition of permitting the plaintiff to discontinue.

But, although no question in respect thereto has been presented upon this appeal, we do not think the fourth paragraph, of the order appealed from can be affirmed. The court had no power upon this motion to direct that the action be dismissed in -default of the payment of costs. All that it could do under those -circumstances was to deny the motion for discontinuance.

We are of opinion, therefore, that the order appealed from ¡should be modified by striking out the fourth paragraph, and affirmed as to the rest of the order, without costs of this appeal.

Barrett, J, concurs.  