
    Ludlow W. Valentine, Appellant, v. Abby Muir Valentine, Respondent.
    Second Department,
    November 19, 1909.
    Discontinuance of action — when ex parte order proper — vacating order of discontinuance — improper conditions.
    A plaintiff is- entitled to an ex parte order discontinuing his action if there be nothing to show that a discontinuance is inequitable to the defendant.
    A defendant cannot compel a plaintiff to litigate against his will merely for the satisfaction of winning at trial.
    While the court has discretion to vacate an ex parte order of discontinuance it should only do so when facts justifying such action are presented.
    Where there is no justification for vacating an ex parte order of discontinuance, the court cannot vacate it unless the plaintiff stipulate as a condition of discontinuance not to sue again on the same cause of action and to pay any additional allowance the court may giant.
    Although in a proper case the plaintiff, as a condition for discontinuance, may be required to pay costs and an additional allowance he cannot be required to give up his right to test the propriety cf an additional allowance when no facts justifying the same are shown.
    Appeal by the plaintiff, Ludlow W. Valentine, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of June, 1909.
    
      Edmund F. Harding [William P. Maloney with him on the brief], for the appellant.
    
      Michael J. Tierney, for the respondent.
   Miller, J.:

After this case was on the calendar for trial and one adjournment had been procured by the plaintiff, an order was obtained ex pa/rte by the plaintiff discontinuing the action on payment of costs by the plaintiff to the defendant. The order appealed from vacates that order and sets the case for trial peremptorily on a date named “ unless the plaintiff stipulates that as a condition of such discontinuance he agrees not to sue again on the same cause of action, and to pay the taxable costs of this action and such additional allowance to defendant as the court may grant herein.” The pleadings are not before us, but the order appealed from appears to have been made on the affidavit of the defendant, which, however, does not state any reason for vacating the order of discontinuance. It appears that the action was brought for the purpose of impressing a trust in favor of the plaintiff upon certain real property of the defendant, but nothing is shown which would make it inequitable for the plaintiff to discontinue. The defendant says that she wants to try the issues on the merits, but a defendant cannot e compel a plaintiff to litigate against his will merely for the satisfaction of winning after a trial. If the plaintiff does not -wish to prosecute his action the defendant cannot require him to do so. It was proper to obtain the order of discontinuance ex pa/rte. While the court retains control of the matter and in a proper case has discretion to vacate such an order, that discretion can only be exercised when facts are presented justifying it. (Matter of Butler, 101 N. Y. 309; Winans v. Winans, 124 id. 140.)

Moreover, upon the facts disclosed by this.record, the court could not impose the condition that the plaintiff should stipulate not to bring another action (Kilmer v. Evening Herald Co., 70 App. Div. 291); nor could the court require the plaintiff to stipulate that he would pay whatever additional allowance the court might grant. If the case was one for an extra allowance that .fact should have been shown by proof and the plaintiff might have been required to pay the costs, including an additional allowance as a condition of discontinuance, but he could not be required to stipulate away the right to test the question whether an additional allowance was proper, and no facts were shown justifying an additional allowance. (See Schlegel v. Roman Catholic Church of Most Holy Trinity, 124 App. Div. 502.)

The order appealed from should be reversed.

Hirschberg, P. J., Woodward, Burr and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  