Majority
p. 82*Arnoux v. Steinbrenner and others. May 27th. on an affidavit of these facts, moved that the complainant have leave to dismiss his bill without costs.
Headnote
Where an executor or administrator has commenced a wrong suit by mistake, or has ascertained that it would be useless to proceed in consequence of facts subsequently discovered, he will be permitted to discontinue without the payment of costs.Arnotjx, together with Steinbrenner and De Grroot, was appointed executor and trustee of the will of Benoit Bonichon, deceased. The complainant alone accepted the executorship. Afterwards, being sick and wishing to be discharged from the trust under the will, he applied to his co-executors, and to the legatees and cestui que trust under the will, to consent to his discharge from the trust, and that the person principally interested in the property should be appointed trustee in his stead. They all consented except Steinbrenner, who refused because he did not intend to accept the trust, and would not therefore interfere. Amoux then filed his bill in this court to be discharged, and Steinbrenner put in an answer, in which he declined having any thing to do with the trust, &c. It afterwards turned out that the estate was insolvent; and all the trust property was sold under executions issued in the lifetime of the testator.
I. Smith,
D. Lord, jun., contra.
The Chancellor :—The English practice in cases of this kind appears to be, to require the complainant to bring his cause to a hearing, to get rid of the costs already accrued. (Anonymous, 1 Ves. jun. 140.)
The "practice of the Supreme Court of this state is much more rational, and I am inclined to follow it in this court.
p. 83
The practice there is, to allow the executor or administrator to discontinue without costs, where he has brought a wrong action by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered.[1] *(Pu rdy v. Purdy, 5 Cowen’s Rep. 14. Phœnix v. Hill, 3 John. Rep. 247 . Morse v. McCoy, 4 Cowen’s Rep. 551.)
The complainant has brought himself within the principle of the decisions of the Supreme Court, and must be permitted to dismiss his bill without costs.
Motion granted.
[1] [1] Fowler v. Starr, 3 Denio, 164 ; How, admin’x v. Taylor, 1 Wen. 34.