Saratoga Gas & Electric-Light Co. v. Town — 74 N.Y. Sup. Ct. 645

Majority

p. 645

In the Matter of the Application of the SARATOGA GAS AND ELECTRIC-LIGHT COMPANY, Appellant, v. BYRON J. TOWN, Receiver of Taxes of the Village of Saratoga Springs, Respondent.

Headnote

Dismissal of an appeal, at the request of the parties, notwithstanding the opposition of the attorney for one of the parties.

When the appellant and respondent unite in an application for the dismissal of an appeal, and there is no claim that the rights of any persons not parties to the record will he affected, and the action or proceeding is not one where the public can be considered a party, the application should not be refused because opposed by the attorney of one of the parties, in the absence of any claim of fraud or collusion, or of lien upon the matter in controversy.

Motion to dismiss an appeal from an order refusing to grant a mandamus.

p. 646

Winsor B. French, for tbe appellant.

Charles S. Lester and F. T. Braclcett, for tbe respondent.

On tbe application of tbe Saratoga Gas and Electric-ligbt Company an order was made by a justice of tbis court directing tbe receiver of taxes of Saratoga Springs to pay certain moneys to tbe gas and electric-ligbt company; tbe receiver paid over tbe moneys as directed by said order; tbe board of street commissioners of Saratoga Springs applied to tbe justice granting said order for a mandamus, compelling tbe said gas and electric-ligbt company to repay to said receiver tbe money paid by bim to said gas and electric-ligbt company; tbe justice refused to grant tbe mandamus, and from sucb refusal tbe board of street commissioners appealed to tbis court, and sucb appeal was placed upon tbe calendar of tbis court for tbe January term, 1892; thereafter the said board of street commissioners adopted certain preambles in relation to tbe matter, and a resolution reading as follows:

“Besolmed, That future prosecutions of said proceedings and of tbe appeal, or of any step in sucb proceedings, be and tbe same is hereby abandoned and stopped, and tbe attorney who has appeared for tbis board in sucb proceeding is hereby directed to take no further steps, and to do no other act in sucb matters.”

Tbe board directed that a .certified' copy of sucb resolution be served upon tbe attorney for tbe board of street commissioners, and also that tbe counsel for tbe gas company and tbe receiver be notified of tbe same.

The counsel for tbe respondents in tbis appeal, tbe Saratoga Gas and Electric-ligbt Company, and Byron J. Town, receiver of Sara-toga Springs, present tbe preamble and resolution of tbe board of street commissioners, together with an affidavit as to tbe status of the case, to tbis court and ask that the appeal be dismissed. Tbe counsel for tbe board of street commissioners oppose sucb motion, and ask that tbe appeal be proceeded with.

The adoption of tbe resolution is not denied. It is not claimed that there is any fraud or collusion between tbe parties in relation to tbe matter.

p. 647

As a general rule, it is a matter of right that a party who has commenced a litigation may discontinue it, unless substantial rights of the other parties have accrued and injustice will be done to them by a discontinuance. (Matter of Butler, 101 N. Y., 307 ; Winans v. Winans, 124 id., 140.)

In the case last cited it was held that an application to discontinue was addressed to the legal not the arbitrary discretion of the court. But in that particular case it was held that the public must be regarded as a party, and that in the public interest a discontinuance might be refused.

In the case at bar the respondents to the appeal are not only willing,' but ask that the appeal be dismissed, so that we have all the parties to the record uniting; there is no claim that the rights of any persons not parties to the record will be affected, and it is not an action or proceeding like Winans v. Winans where the public can be considered a party.

The fact that the attorney for the appellant opposes the dismissal of the appeal, in the absence of any claim of fraud or collusion or lien upon the matter in controversy, is of no consequence. (Roberts v. Doty, 31 Hun, 128 ; Root v. Van Duzen, 32 id., 63.)

This is not a case where the attorney is, in fact, a party in interest, where he has a lien upon the claim, and where there has been a collusive settlement in fraud of his rights, and in the absence of any such facts it seems to me that it would be very unseemly for the court to refuse, at the request of an attorney, to grant the desire of all the parties to a contention that the litigation be settled.

The purpose of courts is to settle contentions and controversies, not continue them; and they will aid parties not embarrass them in making amicable adjustments of their difference.

The motion to dismiss the appeal is granted, no costs having been asked, none are allowed.

Mayhah, P. J., concurred; PutNam, J., not acting.

Appeal dismissed, without costs to either party.