Claflin v. Robertson — 1 Silv. Sup. 176

Majority

p. 176

Horace B. Claflin, Respondent, v. Evolin B. Robertson, Appellant.

N. Y. Supreme Court, Fifth Department, General Term,

April 12, 1889.

Headnote

Discontinuance.—Power of County Judge.—In an action at law to recover money only, the costs are not discretionary, but regulated by statute, and a county judge cannot, in such cases, permit a discontinuance of an action in his court absolutely, upon payment of motion costs of ten dollars only.

E. M. Sanger, for respondents.

A. C. Picard, for appellants.

—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 Ex-stein 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, cwe 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.