
    (112 App. Div. 76)
    HYDE v. ANDERSON et al.
    (Supreme Court, Appellate Division, Second Department.
    March 22, 1906.)
    1. Costs — Motions—Judgment.
    Under Code Civ. Proe. § 779, providing that, where costs of a motion directed by an order to be paid are not paid within the time fixed, an execution may issue in the form as nearly as may be as an execution on a judgment, judgment may not be entered for costs allowed on a motion.
    2. Dismissal and Nonsuit — Leave oe Couet — Conditions — Payment oe Costs — Oedee—Discontinuance.
    On plaintiff’s motion for leave to discontinue, the entry of an order discontinuing the action and requiring plaintiff to pay full costs was error, as the order should only have imposed the costs as a condition of granting leave to discontinue.
    Appeal from Special Term, Kings County.
    Action by Benjamin Hyde against Charles W. Anderson and others. Erom an order denying a motion to vacate a judgment in favor of defendants for costs, plaintiff appeals.
    Reversed.
    The plaintiff made a motion to the Special Term for leave to discontinue. Instead of making a conditional order that the plaintiff might discontinue on payment of costs, the court’s order was a discontinuance of the action and that the plaintiff should pay full costs. On this the defendant had the clerk enter judgment for the costs. The plaintiff made a motion to the Special Term- to set aside this judgment as unauthorized, and it was denied; and this appeal is from that order.
    Argued before HIRSCHBERG, P. J., and WOODWARD, GAY-NOR, RICH, and MIEEER, JJ.
    Sanders Shanks, for appellant.
    Frederick W. Sparks, for respondent.
   GAYNOR, J.

The order should be reversed and the motion granted. The judgment was unauthorized; judgment may not be entered for costs allowed on a motion. Code Civ. Proc. § 779. Moreover, the order of discontinuance should not have been absolute, as it was. It could' only impose the costs as a condition of discontinuance, and then the plaintiff would have been free to pay the costs and discontinue, or go on with the action.

Order reversed with costs and disbursements, and motion granted with costs.

All concur.  