
    Myron L. Derick vs. William R. Taylor.
    Suffolk.
    March 17, 1899.
    May 19, 1899.
    Present: Holmes, Morton, Lathrop, Barker, & Hammond, JJ.
    
      Costs — Discontinuance— Complaint for Failure to prosecute 'Appeal.
    
    A complaint for failure to prosecute an appeal to the Superior Court is a step in the cause, and not an independent proceeding, and the plaintiff having discontinued the action, costs accruing after the discontinuance may be taxed on such complaint.
    Appeal from a taxation of costs. The action was originally begun in the Municipal Court of the city of Boston, and, after judgment there for the defendant, was carried by the plaintiff to the Superior Court on appeal. After its entry in that court the plaintiff discontinued the action. The defendant thereupon filed a complaint for failure to prosecute the appeal, upon which the Superior Court affirmed the judgment of the Municipal Court for the defendant, and the plaintiff appealed to this court, which in a former decision, reported in 171 Mass. 444, reversed the judgment of the Superior Court and ordered judgment for the defendant for costs only. The Superior Court thereupon taxed the defendant’s costs, including costs accruing after the discontinuance of the action, and the plaintiff again appealed to this court.
    
      C. W. Rowley, for the plaintiff.
    
      C. F. Choate, Jr., for the defendant.
   Holmes, J.

The defendant was entitled to costs by reason of the plaintiff’s having discontinued the action, and so it was adjudged when this case was here before. Derick v. Taylor, 171 Mass. 444, 447. See Smith v. Pike, 160 Mass. 24, 26. The complaint for failure to prosecute the appeal was a step in the cause, not an independent proceeding, and may result in the affirmance of the original judgment. Pub. Sts. c. 155, § 34. It follows that costs properly were taxed after the discontinuance.

Taxation affirmed.  