
    HUGH McCULLOUGH et al., App’lts, v. CHAUNCEY VIBBARD et at, Resp’ts.
    Practice—Dismissal of case on merits—When improper—Costs.
    Appeal from so much of a judgment entered upon the report of a referee as dismissed the complaint upon the merits and awarded costs to the defendants.
    
      William Mann, for app’lts; Tracey, Broadhead & Allen, for resp’ts.
   Van Brunt, P. J.

The referee erred in dismissing the plaintiffs’ complaint upon the merits. No evidence whatever was offered by the plaintiffs to support the allegations contained in the'r complaint, which was dismissed for the want of proof. There was no trial of the merits of the controversy to any greater extent than in every case where a judgment of non-suit is entered, and consequently the complaint should not have been dismissed upon the merits.

The referee also erred in allowing costs against the plaintiffs.

The plaintiffs refused to offer any proof to support the allegations of their complaint, and such complaint was dismissed.

The whole of the trial was taken up with the consideration of the counterclaim, contained in the defendants’ answer, and the referee decided against them thereon, and allowed them costs against the plaintiffs. It is true that costs in an action in equity are within the discretion of the court, and such discretion should not legally be interfered with, but there does not seem to be any justice in the plaintiffs being saddled with a large bill of costs, the bulk of which has been incurred in their unsuccessful attempt to defeat the defendants’ counterclaim.

The judgment, so far as appealed from, should be modified by striking out therefrom the words upon the merits and the costs. No costs of this appeal.

Brady and Daniels, JJ., concur.  