
    Jaffray et al. v. Goldstone.
    
      (Supreme Court, General Term, First Department.
    
    November 30, 1891.)
    Costs—Reversal—New Trial—Dismissal.
    When a judgment in favor of the plaintiff is affirmed by the general term, but reversed by the court of appeals, and a new trial awarded, with costs to abide the event, the plaintiff cannot be allowed by the court below to discontinue without paying the taxable costs, and also an extra allowance; but the court has no authority, on defendant’s motion, to require the payment thereof on pain of dismissal.
    Appeal from circuit court, New York county. Modified.
    Action by Edwin S. Jaffray, Howard S. Jaffray, John B. P. Woodriff, and Citarles J. Hadfield, as surviving partners of the late firm of E. S. Jaffray & Co., against Samuel Goldstone, as surviving partner of the late firm of S. Davis & Co., for the recovery of money. From an order denying a motion for leave to discontinue without costs, and giving defendant an extra allowance, and also from an order denying a motion to retax the costs, plaintiffs appeal.
    For former reports, see J affray v. Davis, 1 N. Y. Supp. 814, and 26 N. E, Bep. 351.
    Argued before Van Brunt, P. J., and Barrett, J.
    
      Isaac L. Miller, for appellants. William A. Abbott and John W. Little, for respondent.
   Van Brunt, P. J.

This action was brought to recover a balance alleged to be due to plaintiffs from defendant for goods sold and delivered. Judgment was rendered in favor of the plaintiffs, which judgment was affirmed by the general term, but was reversed by the court of appeals, and a new trial ordered, with costs to abide event, and judgment was entered upon the remittitur. When the case was about to appear upon the day calendar for retrial, the plaintiffs obtained an order for the defendant to show cause why the action should not be discontinued without costs, or why the plaintiffs should not have such other relief as might be just, and staying defendant’s proceedings. The defendant thereupon applied to the same judge who granted the previous order to show cause, for an order requiring the plaintiffs to show cause why an order should not be made granting the defendant an allowance of 5 per cent, upon the value of the subject-matter involved in the action, and discontinuing the action, with costs in favor of defendant against the plaintiffs, and vacating the stay to the extent of permitting the defendant to make this motion. The two motions coming oh together, the court made the following order: “ First, that the motion of plaintiffs for leave to discontinuethis action without costs be, and the same hereby is, denied; second, that, on the said motion of the defendant, the defendant is hereby allowed the sum of $200 by way of additional costs, said action beinga difficult and extraordinary case; third, that the defendant is entitled to recover of the plaintiffs the full costs which he could tax if the complaint had been regularly dismissed upon a new trial on the merits; fourth, that this action be dismissed, unless the plaintiffs pay the said sum of $200 and said costs within 10 days after the taxation thereof.” The defendant thereupon taxed his costs, including a trial fee for the first trial, four term fees, and the costs of appeal before the general term; to all of which items the plaintiffs objected, and made a motion for retaxation, which was denied, and from the two orders above mentioned this appeal is taken.

It is urged by the appellants that the granting of costs and extra allowance is adding to the judgment of the court of appeals, and that the sole duty of the special term was to enter exactly the order which the court of appeals directed, and that it should neither add to nor take away therefrom: and that all that by the judgment of the court of appeals the defendant recovers are costs of the appeal, and not general costs of the action, nor is he entitled to an extra' allowance. In the case of Franey v. Smith, 126 N. Y. 658, 27 N. E. Rep. 559, to which this court has already had occasion to advert, the court of appeals laid down distinctly what in their judgment reversing an order with costs means, and what they intend when they reverse the judgment of the court below, and grant a new trial, with costs to abide the event, which is the case at bar. They there state: “Where we reverse the judgment of the court below and grant a new trial, in either an equitable or legal action, with costs to abide the event, all the costs of the action up to that time are intended.” Therefore, if the plaintiffs had failed to succeed upon a new trial, the defendant would have been entitled to tax all the previous costs, together with the costs of the appeal and the costs of the new trial. Now, prior to the actual taking place of the new trial, the plaintiffs make an application for leave to discontinue without costs, or for such other relief as they might be entitled to; and the court denied their motion to discontinue without costs* and granted the motion of the defendant for an extra allowance, and found that the defendant was entitled to the'full costs which he could have taxed if the complaint had been regularly dismissed upon a new trial upon the merits; and then that the action should be dismissed, unless the plaintiffs paid such allowance and costs. It was undoubtedly the opinion of the court that the plaintiffs should not be allowed to retire from this litigation without paying the costs which had accrued, and an extra allowance because of the character of the action. The court had the right to determine upon what terms the plaintiffs should be allowed to do this; and, if the plaintiffs were not satisfied witli the terms, they could either appeal from the order, as they have done in this case, or they could go on with the action, refusing to accept the terms.

That the defendant, upon the dismissal of the complaint, would have been •entitled to full costs, under the decision we have already referred to, needs no comment; and that, where an answer is put in, the plaintiffs cannot retire without making themselves subject to the payment of an extra allowance, is also equally well settled. And the rule that the motion for an extra allowance should have been made to the judge who tried the case has no application to a case of the character now before the court. Without any motion upon the part of the defendant, the courtVould have been entitled to impose an extra allowance as a condition of permitting the plaintiffs to discontinue. But, although no question in respect thereto has been presented upon this appeal, we do not think the fourth paragraph of the order appealed from can be affirmed. The court had no power upon this motion to direct that the action be dismissed in default of the payment of costs. All that it could do, under •those circumstances, was to deny the motion for discontinuance. We are of •opinion, therefore, that the order appealed from should be modified by striking out the fourth paragraph, and affirmed as to the rest of the order, without •costs of this appeal.  