
    (67 Hun, 645.)
    SARATOGA GAS & ELECTRIC LIGHT CO. v. TOWN, Receiver of Taxes.
    (Supreme Court,, General Term, Third Department.
    February 15, 1893.)
    Appeal—Dismissal.
    An appeal will be dismissed, where both appellants and respondents sb request, if the rights of persons not parties to the record will not be affected, and the action is not one in which the public can be considered a party, and if appellants’ attorney, who opposes the motion, makes no claim of fraud or collusion, or lien upon the matter in controversy.
    Appeal from special term.
    Proceedings by the Saratoga Gas & Electric Light Company to require Byron J. Town, receiver of taxes, to pay over to it certain moneys. The moneys having been paid under an order of the court, the board of street commissioners of Saratoga Springs applied for a writ of mandamus to compel repayment, and, from an order refusing to grant the writ, they appealed. Respondents moved to dismiss the appeal.
    Dismissed.
    Argued before MAYHAM, P. J., and HERRICK, J.
    Winsor B. French, for appellants.
    Charles S. Lester and E. T. Brackett, for respondents.
   HERRICK, J.

On the application of the Saratoga Gas & Electric Light Company, an order was made by a justice of this court, directing the receiver of taxes of Saratoga Springs to pay certain moneys to the gas and electric light company. The receiver paid over the moneys as directed by said order. The board of street commissioners of Saratoga Springs applied to the justice granting said order for a mandamus compelling the said gas and electric light company to repay to said receiver the money paid by him to said gas and electric light company. The justice refused to grant the mandamus, and from such refusal the board of street commissioners appealed to this court, and such appeal was placed upon the calendar of this court for the January term, 1892. That thereafter the said board of street commissioners adopted certain preambles in relation to the matter, and a resolution reading as follows:

“Resolved, that future prosecution of said proceedings and of the appeal, or of any step in such proceedings, be, and the same is hereby, abandoned and stopped, and the attorney who has appeared for this board in such proceedings is hereby directed to take no further steps, and to do no other act, in such matters. ”

The board directed that a certified copy of such resolution be served upon the attorney for the board of street commissioners, and also that the counsel for the gas company and the receiver be notified of the same. The counsel for the respondents in this appeal, the Saratoga Gas & Electric Light Company and Byron J. Town, receiver of taxes of Saratoga Springs, present the preamble and resolution of the board of street commissioners, together with an affidavit as to the status of the case, to this court, and ask that the appeal be dismissed. The counsel for the board of street commissioners opposes such motion, and asks that the appeal be proceeded with.

The adoption of the resolution is not denied. It is not claimed that there is any fraud or collusion between the parties in relation to the matter. Asa general rule, it is a matter of right that a party who has commenced a litigation may discontinue it, unless substantial rights of the other parties have accrued, and injustice will be done to them by a discontinuance. In re Butler, 101 N. Y. 307, 4 N. E. Rep. 518: Winans v. Winans, 124 N. Y. 140, 26 N. E. Rep. 293. In the case last cited, it was held that an application to discontinue was addressed to the legal, not the arbitrary, discretion of the court. But in that particular case it was held that the public must be regarded as a party, and that, in the public interest, a discontinuance might be refused. In the case at bar the respondents to the appeal are not only willing, but ask, that the appeal be'dismissed, so that we have all the parties to the rec'ord uniting. There is no claim that the rights of any persons not parties to the record will be affected, and it is not an action or proceeding like Winans v. Winans, where the public can be considered a party. The fact that the attorney for the appellants opposes the dismissal of the appeal, in the absence of any claim of fraud or collusion, or lien upon the matter in controversy, is of no consequence. Roberts v. Doty, 31 Hun, 128; Root v. Van Duzen, 32 Hun, 63. This is not a case where the attorney is in fact a party in interest, where he has a lien upon the claim, and where there has been a collusive settlement in fraud of his rights; and, in the absence of any such facts, it seems to me that it would be very unseemly for the court to refuse, at the request of an attorney, to grant the desire of all the parties to a contention, that the litigation be settled. The purpose of courts is to settle contentions and controversies, not continue them; and they will aid parties, not embarrass them, in making amicable adjustments of their differences. The motion to dismiss the appeal is granted. No costs having been asked, none are allowed.  