Coffin v. Coke

11 N.Y. Sup. Ct. 616

Opinion

Davis, P. J.:

The only question on this appeal is whether an additional allowance may be granted by the court where the plaintiff discontinues the action on payment of costs.

It is not doubted that this case was difficult and extraordinary • within the meaning of the Code. A defense had been interposed.. The merits were involved in the motion for injunction which came before this court on appeal, and was fully discussed by the respective counsel and considered by the court. After a decision adversely to the plaintiff, he served notice of discontinuance on payment of costs. This entitled the defendant to tax final costs in the action. An additional allowance when properly granted becomes a part of the costs of the action awarded by the Code to the successful party. (Commissioners of Pilots v. Spofford, 10 S. C., 57.) Such allowance when granted is within the word “ costs,” as used in section 385 of the Code. (Coates v. Goddard, 2 Jones & Spencer, 118.)

The following cases seem to justify an allowance when a plaintiff voluntarily submits to a nonsuit or discontinues after issue joined: Allaire v. Lee (4 Duer, 609); Danenhover v. March (4 Abb., 254); Woods v. Illinois Central R. R. (20 How. Pr., 285).

As the Code now stands a t/rial is not a necessary element when a defense has been interposed in a difficult and extraordinary case; nor do we deem it necessary that a judgment should be actually entered.

It is enough if the plaintiff has terminated the action in such form that the defendant can lawfully claim the payment of his costs on such termination and enforce their payment in any mode known to the practice.

The order should be affirmed with ten dollars costs, besides disbursements.

Brady and Daniels, JJ., concurred.

Order affirmed with ten dollars costs, besides disbursements.