
    James Ackroyd, Plaintiff, v. John M. Newton et al., Defendants.
    (Supreme Court, Albany Special Term,
    August, 1898.)
    Discontinuance — Costs — Defendants severing unnecessarily.
    Although the court has power to permit the discontinuance, without costs, o-f a common-law action it will not -ordinarily do so; but where two former partners, who subsequently formed a corporation, When mistakenly sued as partners unnecessarily, sever in their defense, but one bill of costs will be allowed.
    -Motion to discontinue, without costs, an action commenced against the defendants, as copartners, it appearing, subsequent to the joinder of issue, that the debtor was a corporation and not a copartnership. Defendants severed in their defenses and answered by separate attorneys.
    Frederick E. Wadhams, for motion.
    Chas. Irving Oliver, opposed.
   Edwards, J.

In common law, as well as in equitable- .actions, the court has power to permit a. discontinuance of the action, without costs. De Barante v. Deyermand, 41 N. Y. 357. The almost invariable rulé in actions at law is that the party desiring to- discontinue muáft pay the; accrued costs. To this rule there are bu|t few exceptions.- Although the present case is a hard one for the plaintiff, I do- not think that it comes within, that class' of cases which are exceptions to the rule.

But-1 cannot conceive of any good reason why the defendants should have separately answered by separate attorneys. ■ The papers disclose, beyond any question, the fact that the defendants -needlessly severed in- their defenses. It is sufficiently onerous to the plaintiff to lose his claim and to pay one bill -of costs. The burden of two bills would be as unjust as- it is needless. The case is not one in which separate bills of costs should be allowed. Let an order be entered permitting the plaintiff to discontinue the action upon payment to the defendant, John M. Newton, of his taxable costs down to the time of noticing this motion. No costs of this motion allowed. '

Ordered accordingly.  