Majority
p. 305Horace B. Claflin et al., Resp’ts, v. Evolin B. Robertson et al., App’lts. (Supreme Court, General Term, Fifth Department, Filed April 12, 1889.)
Headnote
Jurisdiction—County court—Power to permit discontinuance—Costs.The county court has no power, in an action at law to recover money only, to permit a discontinuance thereof upon payment of motion costs of ten dollars only.
E. M. Sanger, for resp’ts; A. C. Picard, for app’lts.
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, the same, for the reason stated in the opinion in the Exstein Case, would doubtless have been affirmed. But the order in this case permitted a discontinuance absolutely upon payment of motion costs of ten dollars only. This, we think, it was not competent for the county judge to-order. The 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.