Majority
Order affirmed, with costs and disbursements.
Mem.
The 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 facte, or of the rights of the parties, appear in the case, as would justify a reversal of the order. (Crosby v. Fitzpatrick, 23 Wkly. Dig. 35 ; Morss v. Hasbro > tele, 13 id. 393; Byron v. Dui'rie, 6 Abb. N. C. 135 ; Smith v. Banker, 3 How. 142 .) The order should be affirmed, with costs and disbursements.