
    Alexander O. Levy, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Appeal — notice pf — from judgment of Municipal Court of city of New York — actions —1 costs.
    Discontinuance — practice in Supreme Court as to right of suitor to discontinue — motions and orders — actions.
    Under section 155 of the Municipal Court Code an appeal from a judgment of the Municipal Court of the city of New York brings up for review any order made after the entry of the judgment and specified in the notice of appeal.
    The practice in the Supreme Court as to the right of a suitor to discontinue an action commenced by him applies to the Municipal Court of the city of New York.
    No judgment may be entered on an order granting a motion for the discontinuance of an action.
    Where a motion by plaintiff to discontinue an action brought in the Municipal Court of the city of New York is granted, the clerk must tax the costs fixed by the statute.
    Under section 125 of the Municipal Court Code a plaintiff who has been granted leave to discontinue an action may not begin a new action until payment of the costs taxed on said motion.
    Where upon the discontinuance of an action on plaintiff’s motion he failed to pay the costs as taxed, defendant may move for a dismissal of the case under section 126 of the Municipal Court Code.
    
      Though a judgment for costs entered in favor of defendant upon granting plaintiff’s motion to discontinue an action is irregular, defendant is not injured and may not appeal from the judgment.
    Appeal by defendant from judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, dismissing the complaint of the plaintiff without prejudice to a new trial and from an order denying defendant’s motion to set aside said judgment and dismiss the complaint upon the merits.
    Butcher, Tanner & Foster (James N. Luttrell, of counsel), for appellant.
    Ellis V. Levy, for respondent.
   Guy, J.

The record in this case shows that the parties went to trial upon April 26, 1916. That after the testimony on both sides had been given and both parties had rested the defendant moved to dismiss the case upon the merits. After some discussion between the court and the attorneys for the respective parties the plaintiff’s attorney said, “I will discontinue the case, if your Honor please.” The defendant’s attorney said he did not think the plaintiff could discontinue “ after the case was in and both sides have rested.” The court, however, granted the motion to discontinue and subsequently, by direction of the trial justice, a judgment was entered dismissing the complaint without prejudice to a new action, with costs against the plaintiff, and in favor of the defendant. The defendant then moved to have the judgment set aside and also the order dismissing the complaint without prejudice to a new action, and to have an order entered dismissing the complaint upon the merits. This motion was denied and an order amending the first order was entered. The defendant appeals from the judgment and the two orders.

The plaintiff claims in his brief that the defendant has appealed from a nonappealable order only, but the notice of appeal states that it is from “ the decision and judgment ” entered, etc. The notice of appeal also refers to the subsequent orders and, therefore, brings up for review any order entered after the entry of the judgment and specified in the notice of appeal. Municipal Court Code, § 155.

Under the provisions of the former Municipal Court Act (§ 248) a judgment that the action be dismissed, with costs and without prejudice to a new action, could be entered when the plaintiff voluntarily discontinued the action before it was finally submitted. ’This provision has not been carried into the Municipal Court Code. Section 119 of the Municipal Court Code, which declares that the justice must render his judgment within fourteen days from the time when the case is “submitted for that purpose,” has no application to the time when an action may be discontinued. There seems to be nothing in the Municipal Court Code which determines when an application for leave to discontinue an action may be granted. Section 125 of the Municipal Court Code, which superseded section 248 of the former act, is silent upon that subject. Section 1182 of the Code of Civil Procedure declares that in an action tried before a jury it is not necessary to call the plaintiff, when the jury are about to deliver their verdict, and that in such an action the plaintiff cannot submit to a nonsuit “ after the cause has been committed to the jury to consider their verdict.” In the absence of any express provision in the Municipal Court Code the practice in the Supreme Court would apply. Municipal Court Code, § Í5. In thé case of Matter of Butler, 101 N. Y. 307, it was held that ordinarily a suitor has a right to discontinue any action or proceeding commenced by him and his reasons for so doing aré no concern of the court. See also Harrigan v. Prendergast, 94 Misc. Rep. 151. It has been held that, on motion for leave to discontinue, the proper practice is to enter an order of discontinuance on payment of costs, if such terms are imposed, and that no judgment can be entered upon such an order (Hyde v. Anderson, 112 App. Div. 76; Anderson v. Norton, 158 N. Y. Supp. 152; Bien v. National Surety Co., 95 Misc. Rep. 194), and that if the plaintiff failed thereafter to take the proper steps -or to proceed with the action the defendant’s remedy was to move to dismiss the complaint for failure to prosecute.' In the Municipal Court Code there is no provision made for the dismissal of the action for failure to prosecute, except when the case has been upon the reserved calendar for more than six months. Municipal Court Code, § 126. What then is the remedy of a defendant when the plaintiff has been allowed to discontinue his action? Such leave is granted upon motion and must result in an order.

Upon such an order no judgment can be entered. Hyde v. Anderson, supra. Section 164, subdivision 9, provides that where a plaintiff discontinues before trial costs shall be awarded to the defendant, as provided in subdivision 8 of that section, and that where the plaintiff discontinues during trial costs shall be awarded as provided in subdivision 7 of that section. Subdivision 7 of that section refers to subdivision 1 of section 164, and subdivision 1 provides for. costs to the defendant at rates graded according to the amount of recovery. Costs upon a discontinuance of a plaintiff, either before or after trial, are, therefore, not discretionary with the justice, but are fixed by the statute, and when, therefore, a plaintiff is allowed to discontinue his action, costs should be taxed by the clerk. Bien v. National Surety Co., supra. We do not decide whether or not an execution could be issued thereon, under the provisions of section 779 of the Code of Civil Procedure. See Code Civ. Pro. § 3347, subd. 6.

All subsequent proceedings on the part of a party who is required to pay the costs of either a judgment or an order are automatically stayed, until their payment, by section 125, Municipal Court Code, and the plaintiff in such a case could not proceed with a new action until such payment was made. Unless such costs were paid the right to dismiss under section 126 would eventually accrue. In the case at bar a judgment was entered in favor of defendant. When the plaintiff moved to dismiss, the defendant did not state that he would be prejudiced in any way by the discontinuance of the action.

The plaintiff does not appeal from the judgment so entered against him, and the defendant has no cause of complaint.

The court below had no discretion as to imposing terms and was compelled to allow the discontinuance under the circumstances. If the judgment is irregularly entered, the defendant is not injured and has no grievance nor any standing to appeal from the judgment.

Bijur and Philbin, JJ., concur.

Appeals dismissed, without costs.  