Majority
p. 430Claflin et al. v. Robertson et al. (Supreme Court, General Term, Fifth Department. April 12, 1889.) Argued before Barker, P. J„ and Dwight and Macomber, JJ.
Headnote
Costs—On Discontinuance.The county court has no power, in an action for the recovery of money only, to allow a discontinuance upon the payment of the motion costs only; the costs in such actions being regulated by statute and not discretionary.
Appeal from Chautauqua county court.
Action by Horace B. Claflin and others against Evolin B. Robertson and others. Defendants appeal from an order of the county court allowing a discontinuance of the action on the payment of $10 motion costs.
A. C. Pickard, for appellants. E. M. Sawyer, for respondents.
Had the order in this action, from which the appeal is .taken, been the same as the one in which Hiram Exstein was plaintiff, heard at the present term of court, [ante, 429,) the same, for the reason "stated in the opinion in the Exstein Case, would doubtless have been affirmed. But the order in this ease permitted a discontinuance absolutely upon payment of motion costs of $10 only. This we think it was not competent for the .county judge to order. This action is one at law to recover money only, where the costs are not discretionary, but are regulated by statute. The order appealed from should be reversed, with costs, leaving the plaintiffs to proceed as they may be advised. All concur.