
    Otto H. Droege, Appellant, v. John Bittner, Respondent.
    (Supreme Court,Appellate Term, First Department,
    February, 1916.)
    Discontinuance — of actions — leave to discontinue — Municipal Court of city of New York — costs — evidence.
    While plaintiff was being cross-examined on rebuttal the court said “ That is all.” The witness left the stand and a colloquy ensued during which the stenographer noted “ Both sides rest.” Subsequently and during a further conversation between the court and the respective attorneys plaintiff asked leave to discontinue, which was refused, and judgment was rendered for him for less than half his claim. Held, that the case had not been submitted to the court for decision so completely as to preclude plaintiff’s right to discontinue the action which was brought in the Municipal Court of the city of New York after the Municipal Court Code went into effect, and plaintiff should have been allowed to discontinue without prejudice to a new action, upon payment of costs.
    Appeal by plaintiff from a judgment of the Municipal Court of the city óf New York, borough of Manhattan, sixth district, rendered in his favor.
    John Mulholland, for appellant.
    George Hahn, for respondent.
   Gavegan, J.

The only question to be determined upon this appeal is the plaintiff’s right to discontinue an action at the time he asked leave to do so. The record discloses that while the plaintiff was' being cross-examined upon his rebuttal testimony the court said: V That is all.” The witness left the stand and a colloquy ensued during which the stenographer noted ‘ ‘ both sides rest. ’ ’ Subsequently and during a further conversation between the court and the respective attorneys, the plaintiff asked leave to discontinue which was refused and judgment rendered for him for less than half of his claim. From this record it is evident that the case had not been submitted by the parties to the trial court, for decision so completely as to preclude the plaintiff’s right to discontinue. The action was brought after the Municipal Court Code went into effect and the rules governing the rights of plaintiff to discontinue are therefore those in force in the Supreme Court. In Matter of Butler, 101 N. Y. 307, it was held:" Except where substantial rights of other parties have accrued and injustice will be done to them by permitting it, a party has a right to discontinue an action or proceeding and his reasons for so doing are of no concern to the court. A refusal of leave to discontinue, therefore, where nothing appears to show that it will injuriously affect the rights or interests of the adverse party, is not within the discretion of the court, and is error.”

In Winans v. Winans, 124 N. Y. 140, the court said: “An application for leave to discontinue an action is addressed to the legal, not the arbitrary discretion of the court, and it may not be denied capriciously, but may be refused whenever circumstances exist which afford a basis for the exercise of legal discretion; in such a case the court has but to consider whether anything has occurred since the commencement of the action which would so far prejudice defendant’s interest, in the event' of a discontinuance, as to require a denial of the application.”

, Nothing was shown in this case calling for a denial of plaintiff’s request and he should have been allowed to discontinue. Judgment for costs would of course go against him in such a case. •

Judgment reversed, with thirty dollars costs to appellant, and complaint dismissed without prejudice to a new action, with costs in the lower court, costs of one party to be set off against those of the other.

Guy and Bijur, JJ., concur.

Judgment reversed, with thirty dollars costs to appellant.  