Majority
p. 740David J. Johnston, Resp’t, v. John Garside, Mayor, et al., App’lts. Charles F. North et al., Resp’ts, v. John Garside, Mayor, et al., App’lts. (Supreme Court, General Term, Third Department, Filed July 8, 1893.)
Headnote
Discontinuance—Costs—Equitable action.The special term has power, in an equitable action, and especially where a change in the law has rendered the litigation unnecessary and fruitless, to allow a discontinuance without costs.
p. 741
Appeals from orders allowing a discontinuance, without costs. The actions were brought against the defendants as the major" and fire commissioners of the city of Cohoes, to prevent waste and prevent the defendants from meeting and appointing another commissioner, and then, claiming to be the fire board, unlawfully seizing and taking the fire department and its property from the possession of the plaintiffs in the second action, who were also fire commissioners, wasting, plundering and destroying the same. After service of the preliminary injunction upon the defendants, defendant Gfarside went out of office, and by chap. 671, Laws 1892, the new charter of the city, the whole board of fire commissioners were legislated out of office, and a new board has been appointed.
J. F. Crawford and P. D. Niver, for app’lts; C. H. Sturges and J. L. Henning (Charles F. Doyle, of counsel), for resp’ts.
action was an equitable one, and upon that ground, as well as the change in the law, by which the parties were legislated out of office before the trial of the action, the court at special term could allow a discontinuance without costs.
The application was addressed to the discretion of the court below, and we are of the opinion that no such an abuse of discretion, or misapprehension of the facts, or of the rights of the parties, appear in the case as would justify a reversal of the order. Crosby v. Fitzpatrick, 23 W. Dig., 35; Morss v. Hasbrouck, 13 id., 393; Byron v. Durrie, 6 Abb. N. C., 135 ; Smith v. Banker, 3 How., 142 .
The order should be affirmed, with costs and disbursements.
Mayham, P. J., Putham and Herrick, JJ., concur.