Majority
p. 133ROBINS v. GOULD. N. Y. Supreme Court; Special Term, October, 1876.
Headnote
Allowance on Discontinuance.It is proper, in difficult and extraordinary cases, to require payment of an allowance in addition to costs, as a condition of leave to discontinue.[1]
Motion for allowance in addition to costs, as a condition for permitting plaintiff to discontinue.
The action was in the main similar to those of Chatterton v. Fisk (p. 88 of this vol.), and Mills v. Gould (p. 93).
Thomas C. Shearman (Shearman & Sterling, attorneys), for the motion.
I. It is constant practice to grant an allowance upon a discontinuance, when it appears that large expenses have been incurred before trial. In Troxell v. Haynes (Common Pleas, 1875), Judge Robinson granted the full allowance of five per cent, on a discontinuance. In Zaun v. Phillips (Superior Court, Jan. 14, 1875), an allowance was granted by Sanford, J., on a discontinuance, the case not having approached trial; and the order was affirmed on appeal to the general term. In a recent case
p. 134
in this court, the cause being called for trial, plaintiff-asked leave to discontinue ; and Mr. Justice Barrett granted a dismissal with an allowance of $250.
II. The facts of this case establish a strong claim for an allowance.
Wheeler II. Peckham (Miller, Stoutenburgh & Peckham, attorneys), for plaintiffs.
I have no doubt that this case was an extraordinary and difficult one within the meaning of the Code. If the issues were at all similar to those in Taylor against the same defendant (tried before me two months since), the questions of law and fact were delicate and complicated. It certainly was not an ordinary action for breach of contract. The plaintiff, on the proofs contained in Mr. Shearman’s affidavit, is fairly entitled to a moderate allowance, and I think that, considering the amount involved, and the labor and expense stated, $500 would be but reasonable.