
    National Wall Paper Company, Respondent, v. Hirsch Szerlip, Appellant.
    
      Service of the summons in an action at law upon tlve wrong person—the costs upon a discontinuance of the action before final judgment m'e discretionary.
    
    The summons in an action at law, to recover the purchase price of goods sold, commenced in a County Court, was served upon a person bearing the same name, but not the person intended to be served; the party served answered, and when the action had been noticed and placed upon the calendar for trial, the mistake Was discovered.
    The court permitted the plaintiff to discontinue the action upon payment of ten dollars costs,.and refused the defendant’s demand for the costs which would have been taxable at that time if a judgment had been recovered by him. Upon an appeal from the order of discontinuance,
    • Held, that the defendant’s right to costs depended upon section 3229 of the Code of Civil Procedure, under which a defendant is entitled to certain specified costs upon the rendition.of final judgment, but that as, in this case, no final judgment had been entered (although the action was one at law), that section was not available to the defendant;
    That the terms upon which the plaintiff’s application should be granted rested in the discretion of the court, and as it did not appear that such discretion had been arbitrarily exercised the decision of the court would not be disturbed. defendant’s attorney of ten dollars costs, and also from an order entered in said cleric’s office on the 6th day of Hay, 1896, discontinuing the said action.
    
      Appeal by the defendant, Hirsch Szerlip, from an order of the County Court óf the county of Kings,' entered in the office of the clerk of the county of Kings on the 2d day of May, 1896, allowing the plaintiff to discontinue the action on the payment to the.
    
      
      H. B. Davis, for the appellant.
    
      Lucien S. Bayliss, for the respondent.
   Bradley, J. :

■ The action was one at law to recover the purchase price of goods-sold by the plaintiff to a person other than the defendant, having the same name as the one on whom the summons ivas served. The mistake was discovered after the defendant had answered and the action had been noticed and placed upon the calendar for trial. Then the plaintiff’s motion for leave to discontinue was made and . granted on payment of ten dollars costs. It is insisted on the part of the defendant that, as the action was one of law, he was entitled to the amount of costs which would have been taxable for the proceedings had up to that time if he had recovered judgment. In support of that view is cited Claflin v. Robertson (23 N. Y. St. Repr. 305). It cannot well be supposed that the court in that case intended to hold that there was, on the question of costs, no discretion in the court on granting to the plaintiff leave to discontinue an action at law. The right to costs is dependent upon the statute, which provides that in such an action the defendant is entitled to specified costs upon the rendition of final judgment. (Code Civ. Proc. § 3229.) This provision is not available to' the defendant, as it is applicable only when such result is reached in an action. The terms or condition on which the plaintiff’s application should be granted was addressed to the discretion of the County Court; and leave being-given to discontinue the action the defendant’s right to costs was-derived from the order. (Overton v. Nat. Bank of Auburn, 3 N. Y. St. Repr. 169 ; De Barante v. Deyermand, 41 N. Y. 355.) While it may be usual to require the payment of all accrued costs as a condition of .allowing the discontinuance of an action on plaintiff’s application, there may be cases where reasons appear to the court for imposing more moderate terms as to costs. In the present case there were some circumstances which may have been urged upon the application and considered by the court in support of the view there taken of it. The order appealed from was made by a court other than that in which the review is sought, and, as the discretionary power of that court is not deemed to have been arbitrarily exercised, the result given by the order should be permitted to remain. (Tucker v. Pfau, 70 Hun, 59.)

The order should be affirmed.

All concurred.

Order affirmed,, without costs.  