
    Felix D. Clossey, Resp’t, v. Marshall J. Ayers, Adm’r, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892,)
    
    1. Decedents estates—Clams against—Discontinuance.
    A proceeding under the statute in relation to disputed claims against an estate cannot he discontinued except upon payment of costs.
    2. Same.
    Where the decision of the referee in favor of the claimant has been set aside by the court, findings of the referee are not available for the purposes of a motion to discontinue without costs, as they must be deemed to have gone for naught by reason of the action of the court.
    Appeal by the defendant from an order made at the Monroe ■special term, May 25, 1891, and entered in Steuben county, June 1, 1891, allowing the plaintiff to discontinue this action or proceeding on payment only of the defendant’s taxable disbursements, together with ten dollars costs of opposing the plaintiff’s motion for such discontinuance.
    
      Eli Soule, for app’lt; F. S. Robinson, for resp’t.
   Macomber, J.

This action began as a special proceeding instituted under the statute for the prosecution of claims against the • estates of deceased persons. An order óf reference therein was made, and the referee reported in the plaintiff’s favor in the sum of $57.42. Amotion was made in behalf of the plaintiff for a confirmation of such report, and at the same time a counter application was made by the defendant, on a case and exceptions, to set aside the same; thereupon the court refused to confirm the report and directed a new trial before another referee, holding, in substance, that under the facts established the plaintiff could not recover. The question of costs, however, was reserved for future consideration, and until the final disposition of the case.

A new trial was not had in pursuance of the decision of the special term. The plaintiff, however, made a motion for leave to discontinue the action, and on the hearing of such motion the order appealed from was made.

The question mainly involved in this appeal was recently considered by this court in the case of Agar v. Tibbels, 30 St. Bep., 456, where it was held that on a reference .of this kind the plaintiff or claimant could not properly be permitted to discontinue the action or proceeding, except upon payment of costs to the defendant. It is, therefore, unnecessary to review the grounds upon which the' judgment was there stated to rest, for, so far as the power of this court extends, it is a decisive authority in favor of the appellant.

But it is claimed by the learned counsel for the respondent that there are certain equitable considerations which ought to prevail, through which the plaintiff should be permitted, as a matter of favor, to withdraw his action upon less onerous terms than those of the absolute payment of the defendant’s costs taxable according to the statute.

It appears that the plaintiff, in the lifetime of Thomas Hallett, the defendant’s intestate, agreed to furnish to the latiera certain amount of grass seed. There was no contract in writing, and the amount which was subsequently delivered by the plaintiff exceeded in value the sum of fifty dollars, and none of it was delivered in the lifetime of Thomas Hallett. It was, however, delivered after the death of Thomas Hallett to one Benj. J. Hallett. Under these facts the special term held, reversing the decision of the referee, that no recovery could be had against the estate of Thomas Hallett. The plaintiff has certainly, to the extent of desiring to discontinue the action, acquiesced in such decision.

His counsel now urges upon our attention the finding made by the referee that this grass seed, except a small portion thereof, was taken and sown upon the farm 'which Thomas'Hallett died seized of, and that the defendant, as the administrator of the estate of Thomas Hallett, actually cut the hay raised from the sowing of such seed. From these circumstances it is urged that certain equitable considerations exist which should induce the court to permit a discontinuance of the action without payment of the statutory costs. In this contention, however, we cannot concur.

The finding of the referee above mentioned must, for the purposes of the motion for discontinuance and the appeal entered thereon, be deemed to have gone for naught, because the judgment which was directed by the referee, which was certainly in part based on such finding, was wholly disapproved of by the special term.

Furthermore, this is not a ground for the exercise of the exceptional power possessed by the court to discontinue an action without the payment of costs where costs are fixed by statute. The exceptions to this rule are recognized and stated in the case already cited, as follows: “ As, for example, where the defendant has obtained a bankrupt’s discharge after the commencement, of the action, Hart v. Storey, 1 Johns., 143; or had fraudulently concealed the fact of his infancy from the plaintiff, Van Buren v. Fort, 4 Wend., 209; or where, in an action for a penalty, the law imposing the penalty was repealed after the action was brought, Cole v. Rose, 65 How. Pr., 520; or where one named as defendant by mistake and not served with process has intruded himself into a litigation, the result of which could in no manner affect his interest. Waterbury Co. v. Krause, 9 Abb., 175, note.”

The case at bar does not come within any of the above exceptions. The fact, now mainly relied upon for invoking the discretionary action of the court, existed in the case from the beginning, and the plaintiff must be conclusively charged with knowledge .thereof. Under these circumstances, the plaintiff took the ordinary hazards of the litigation, and having failed to recover upon the merits of his case, must, as .a consideration of discontinuance, pay the costs of the action.

Order appealed from reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs, or, at the option of the plaintiff, order modified by substituting for the terms imposed thereby the condition of the payment of the defendant’s costs of the proceeding, as in an action.

Dwight, P. J., and Lewis, J., concur.  