that they were not liable for the defendant's costs (Taylor v. Bolmer, 2 Denio, 193).

a. Where a real plaintiff prosecuted a suit against the defendant for a penalty, by virtue of a parol agreement to divide the amount, if successful, with the nominal plaintiff on record, and the defendant succeeded,-held that the real plaintiff was liable for the defendant's costs (Giles v. Halbert, 12 N. Y. 32).

b. A person interested by way of mortgage or lien, and who prosecutes the suit, is subject to the costs (1 Hill, 629; 15 Abb. 194). So he is liable, although an assignee of only a part of a demand (1 Denio, 656). But an assignment of an interest in a demand as collateral to a debt, the assignor continuing the prosecution of the suit and remaining liable for the debt until paid, does not render such assignee liable for costs (Wolcott v. Holcomb, 31 N. Y. 125).

c. A landlord, or other person, who is entitled by statute to be substituted in the place of, or joined with, the defendant in an ejectment suit, who without causing himself to be made a party, defends such suit unsuccessfully in the name of the original defendant, will be ordered to pay the costs of the plaintiff, after the execution against the defendant on the record has been returned unsatisfied (Farmers' Loan and Trust Co. v. Kursch, 5 N. Y. 558).

d. Where, pending an action, the cause of it becomes the property of another, not a party to the action, the test of such person's liability for costs under § 321 is, would he have been liable if he had brought the action (Conger v. Hudson R. R. R. Co. 7 Abb. 255). Stay of action by assignee until costs of prior action by his assignor paid, see 27 How. 155.

e. On a motion to charge with costs an assignee not a party to the suit, the moving party holds the affirmative and is bound to make out a satisfactory case (Wolcott v. Holcomb, 31 N. Y. 125).

$322. Costs on a settlement.

Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

f. Costs on settlement.-Excess of costs paid to an attorney on the settlement of an action, may be recovered by action-it is not a voluntary payment (Britton v. Frink, 4 How. 144).

g. Payment after action commenced. After action commenced, the defendant cannot oblige the plaintiff to accept in satisfaction, the demand without costs (Rockefellow v. Wiederwax, 3 How. 382). Where a defendant after suit brought, called at the plaintiffs' store, and in their absence paid to a clerk, who was ignorant that a suit had been brought, the amount claimed in the complaint, but without costs,-held that the plaintiffs were, notwithstanding, entitled to costs, and it seems that if the defendants refuse to pay the costs, the plaintiffs may proceed in the action (Bogardus v. Richtmeyer, 3 Abb. 179). [Perhaps to justify proceedings with the action, the amount paid should be repaid or tendered to defendant.] (See 1 Parsons, contra, 231, note; and see Hull v. Peters, 7 Barb. 331). A defendant may, pending the action, satisfy the plaintiff's claim, and then set up such satisfaction in his answer (Willis v. Chipp, 9 How. 568).

h. Several defendants.--In an action against several defendants defending separately, if the plaintiff settles with one or some of the defendants, without the concurrence of the other or others, he is liable to such other or others for the costs of the defense (9 Wend. 435).

i. Discontinuance of course on payment of costs.—It is a matter of course, except in the cases after mentioned, to permit a plaintiff to

enter an order to discontinue on payment of costs, at any time before an interlocutory or final decree has been made (Averill v. Patterson, 10 N. Y. 500; Schenck v. Fancher, 14 How. 95; Burnett v. Westfall, 16 id. 430; Cooke v. Beach, 25 id. 356; and see 2 Johns. Ch. Rep. 478; 1 Ves. jun. 401). But an order for the purpose is necessary in all cases; a notice will not suffice (id.; Morrison v. Ide, 4 How. 304; Bedell v. Powell, 13 Barb. 183; Moffatt v. Ford, 14 Barb. 577; Weigan v. Held, 3 Abb. 462; Bishop v. Bishop, 7 Rob. 194). A plaintiff cannot have an order in any case to discontinue without costs, unless upon a motion on notice to all the defendants who have appeared. An ex parte order to discontinue is, therefore, always upon the condition of payment of costs (Pignolet v. Daveau, 2 Hilton, 584). The order is nugatory unless the costs are paid (Averill v. Patterson, 10 N. Y. 500). The order for leave to discontinue on payment of costs, is not, per se, a stay of proceedings (Beeton v. Jupp, 15 M & W. 149; 15 Law Jour. Ex. 120); nor is the action discontinued until the costs are paid (Jennings v. Fay, 1 Code Rep. N. S. 231). If the costs are not paid, defendant may proceed or ask to have the action dismissed if not prosecuted, but he cannot enter a judgment for costs (Hicks v. Brennan, 10 Abb. 304, 420). Where the complainant obtains the usual order to discontinue, upon payment of costs, the defendant may apply to the court to enforce the payment, or if the costs are not paid after a demand, he may consider the action as still in court, and may plead its pendency as a defense to a subsequent action, or apply to the court to stay proceedings in the second suit, until the costs of the first are paid (Cummins v. Bennett, 8 Paige, 81; and to the like effect is Simpson v. Brewster, 9 id. 245; Saxton v. Stowell, 11 id. 526).

a. A creditor's suit, by plaintiffs on behalf of themselves and others, may be discontinued by plaintiffs of course, on payment of costs (Houseman v. Rosenfield, 18 Abb. 379).

b. Semble, after a defendant has been arrested at the commencement of the action and moved to vacate the order of arrest, the plaintiff cannot discontinue of course without paying the costs of the motion to vacate (Crockett v. Smith, 14 Abb. 62); after an order for a new trial at general term, plaintiff will not be allowed to discontinue while the amount of the costs is in dispute and unpaid (North v. Sargeant, 14 Abb. 224).

c. Where the plaintiff's attorney procures from the defendant personally, a consent that plaintiff may discontinue, and gives no notice of such consent to the defendant's attorney, and suffers him to proceed in the action, the plaintiff cannot discontinue without paying the defendant's attorney his costs subsequent to obtaining such consent to discontinue (Pilger v. Gore, 21 How. 155; 12 Abb. 244).

d. If before the service of an order allowing a party to discontinue on payment of costs, the adverse party has noticed the cause for trial, such adverse party is entitled, as a part of the costs on the discontinuance, to the fee for proceedings subsequent to notice of trial (Hall v. Lindo, 8 Abb. 341).

e. Discontinuance before notice of retainer.-Although an attorney has been actually employed, if no notice of retainer has been served, the plaintiff may discontinue without payment of costs (Schenck v. Fancher, 14 How. 95; Hull v. Peters, 7 Barb. 331; Knight v. Beach, 7 Abb. N. S. 249; overruling Foster v. Bowen, 1 Code Rep. N. S. 236; see Bedell v. Powell, 13 Barb. 183).

f. Discontinuance without costs.-Where one suing in autre droit 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 (Arnoux v. Steinbrenner, 1 Paige, 82; see Reeder v. Seeley, 4 Cow. 548; and Phonix v. Hill, 3 Johns. 249; St. John v. Denison, 9 How. 345). But a plaintiff who is not an executor or administrator [or it is presumed a trustee] will rarely be allowed to discontinue without payment of costs, not even if it should appear that he would be entitled to a judgment if he proceeded in the action (Lewis v. Ger

mond, 1 Paige, 300; and see Hammersley v. Barker, 2 id. 372; Pennell v. Wilson, 5 Rob. 661). And a plaintiff under the section allowing him to amend of course (section 172), cannot amend by leaving out the name of a defendant, so as to discontinue as against him, without costs (Chase v. Dunham, 1 Paige, 572). Plaintiff not allowed to discontinue without costs, because the defense is the statute of limitations (Houseman v. Ro enfield, 18 Abb. 379).

a. Where plaintiff, in bad faith, prevented defendant from making a tender before suit, for which he was prepared,-held that defendant was entitled, on payment into court of the amount claimed, to have a discontinuance without costs (The People v. N. Y. Superior Court, 19 Wend. 104).

b. Plaintiff allowed to discontinue without costs where defendant is sent to the State prison or is insolvent (Lackey v. Mc Donald, 1 Cai. 116; Hart v. Story, 1 Johns. 143; Steinback v. Hallett, 1 Johns. 141); but query? if, on the ground of insolvency, unless defendant has been discharged in insolvency (Wheaton v. McGlade, 1 Wend. 34).

c. On the death of a sole plaintiff, pending an action, his executors may be allowed to discontinue without costs, on showing that the defendant is insolvent (Banta v. Marcellus, 2 Barb. 373).

d. Where, pending an action to foreclose a mortgage, a witness was examined de bene esse, and his testimony was considered a defense to the action, the witness having died, plaintiff was not allowed to discontinue, except on the terms of paying costs and stipulating that in any future action for the same cause, the testimony of the deceased witness might be read (Young v. Bush, 36 How. 240).

e. Where a consul is inadvertently sued, jointly with other defendants, the plaintiff may in certain cases discontinue without costs as to such defendant (Taaks v. Schmidt, 19 How. 413).

f. In an action on two promissory notes made by J. Krause & Brother, the parties intended to be sued were Isidore Krause and Henry Krause; but the defendants were in fact described as Isidore Krause and Moritz Krause. The summons were served on Isidore Krause only, but one Moritz Krause appeared voluntarily, and put in an answer denying that he was a partner of Isidore Krause. On motion, the plaintiff was allowed to discontinue as to Moritz Krause, and amend the summons and proceedings, by substituting the name of Henry for Moritz, without costs (Waterbury Leather Manuf. Co. v. Krause, 9 Abb. 175, note).

g. Where a plaintiff recovers costs against one of several defendants, defending jointly, he may enter a discontinuance as to the others without payment of costs (Stafford v. Onderdonk, 8 Barb. 99).

h. If, by the plaintiff's own act, the object of the action is defeated, he cannot be permitted to discontinue without costs (Hammersley v. Barker, 2 Paige, 372).

. Where a suit is commenced on the authority of a reported decision, and such decision is afterwards reversed or overruled, the courts will usually, and where application is made promptly, after knowledge of such reversal or overruling, relieve the party who relied on such reversed or overruled decision, by permitting him to discontinue his action without costs (Robinson v. Rosher, 1 You. & Col. 7). And in (Sunney v. Roach, 4 Abb. 16), the New York common pleas permitted an appellant from a judgment of the marine court to discontinue without costs; the court of appeals, having, after the appeal was taken, decided contrary to what had previously been held by the common pleas, that no appeal could be maintained. And a discontinuance of an appeal, without costs, was allowed where the law had been changed by statute after the appeal taken (Gale v. Wells, 7 How. 191; Porter v. Jones, id. 192). j. Discontinuance on ground of defendant's insolvency (Ford v. Stock, 1 Dowl. Pr. Cas. N. S. 763).

k. Discontinuance not a bar to a new action.-Where, before trial, an order is entered, discontinuing or dismissing an action, such discontinuance or dismissal does not bar a new action for the same cause (Earl v. Campbell, 14 How. 330).

a. Discontinuance is a step in the cause.-An order for a discontinuance is a step in the cause, and therefore a violation of a rule staying the proceedings (Murray v. Silver, 1 New Prac. Cas. 256).

6. Effect of discontinuance.-A discontinuance terminates the action for all purposes, and operates to dissolve an injunction (Hope v. Acker 7 Abb. 308). It is a final determination of the rights of the parties to the action within § 245 (Crockett v. Smith, 14 Abb. 62).

c. Discontinuance after counter-claim interposed.-After a counter-claim has been set up and admitted of record [i. e., not replied to], the superior court will not allow the plaintiff to discontinue as a matter of course; special grounds must be shown in favor of the application; he must make a case, showing such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendant (Cockle v. Underwood, 1 Abb. 1; 3 Duer, 676).

d. In the supreme court (1st district), it has been held that the right of a plaintiff to discontinue at any time before judgment, formerly existed, and is not abrogated by the code, and that even where the defendant sets up a counter-claim the plaintiff may discontinue of course, before the expiration of the time limited for a reply. They distinguish their decision from that in the superior court; the application to discontinue in that case not having been made until after the time to reply had expired, and when, by not replying, the plaintiff had admitted of record the counter-claim (Seaboard and Roanoke R. R. Co. v. Ward, 1 Abb. 47; 18 Barb. 595; see Wilson v. Wheeler, 6 How. 49; Rees v. Van Patten, 13 How. 258; Pacific Mail S. S. Co. 7 Abb. N. S. 37). Leave to the plaintiff to discontinue should be refused, where the defendant, by a discontinuance, would lose his remedy on his counter-claim, as where such remedy would be barred by the statute of limitations (Van Allen v. Schermerhorn, 14 How. 287).

e. In the New York common pleas it was held at general term (Oaksmith v. Sutherland, 4 Abb. 15; 1 Hilton, 265), that the fact that the defendant has answered, setting up counter-claim, does not preclude the plaintiff from discontinuing before reply or demurrer to the counter-claim or the expiration of the time to reply. They, as did the supreme court, distinguish the case from that of Cockle v. Underwood (supra), by the fact that the application for leave to discontinue was made before the expiration of the time to reply.

f. Discontinuance in action to dissolve partnership.-Semble, the court will not permit a suit for the dissolution of a partnership and the settlement of the partnership debts, to be discontinued by act or consent of the parties. There must be a special application to the court, and notice to the partnership creditors (Rutter v. Tallis, 5 Sand. 612).

g. Discontinuance in foreclosure actions.-In a foreclosure suit, the court will permit the plaintiff, on receiving his debt and costs, to dismiss his suit, without paying costs to junior incumbrancers, who have appeared to protect their rights. So as to the mortgagor personally liable for the debt, who has conveyed the mortgaged premises subject to its payment (Gallagher v. Egan, 2 Sand. 742). In an action to foreclose a mortgage, where the principal has become due, in consequence of default in payment of interest, within the time prescribed therefor, the court has not the power to stay or discontinue the action on payment of the interest due (Hunt v. Keech, 3 Abb. 204; Ferris v. Ferris, 28 Barb. 29; see Lynch v. Cunningham, 6 Abb. 94; Bartow v. Cleveland, 7 Abb. 339; Pratt v. Ramsdell, 16 How. 59; 6 Abb. 340, note; Thurston v. Marsh, 14 How. 572; 5 Abb. 389).

h. Discontinuance after order for new trial.-After a new trial has been ordered by the general term on payment of costs, plaintiff will not be allowed to discontinue while the amount of the costs are in dispute and unpaid (North v. Sargeant, 14 Abb. 224).

i. Installment of bond.-Discontinuance on bond payable by installments when only part due (The People v. N. Y. Superior Court, 19 Wend. 104).

As to ordering a discontinuance or stay to prevent injustice (see Jones v. Winkfield, 10 Bing. 303; 3 M. & S. 816; Ames v. Ragg, 2 Dowl. 35).

a. Forgery.-Discontinuance on defense of forgery (Fowler v. Starr, 3 Denio, 165; Lowerre v. Vail, 5 Abb. 230).

b. Proceedings against insurance companies.— The attorneygeneral has no power to discontinue proceedings instituted by him under Laws of 1853, ch. 466, to close the business of fire insurance companies; the power is with the State comptroller (Re Mechanics' Fire Ins. Co. 5 Abb. 444).

c. Another action pending.-The fact of another action pending for the same cause in a foreign State is no reason for ordering a discontinuance of the action in this State (Republic of Mexico v. Arrangois, 1 Abb. 437; Liftchild v. Smith, 7 Rob. 306; see ante, p. 283, ƒ, 217, f.

d. The pendency of an action on behalf of all the creditors is not a reason for ordering a discontinuance of an action by an individual creditor (La Chaise v. Lord, 10 How. 462).

e. Discontinuance after answer of action pen ding has been set up as a defense to a subsequent action for the same cause.— Where the pendency of a former action is pleaded, the plaintiff may afterwards discontinue; and such discontinuance defeats the answer (Averill v. Paterson, 10 N. Y. 500; see ante, p. 218, a, and Bedell v. Powell, 13 Barb. 183).

f. Discontinuance after a defense of infancy.-In an action against several, as joint defendants, if one of them sets up the defense of infancy, the court, on motion, will give leave to discontinue as to such defendant without costs (Cuyler v. Coates, 10 How. 141; Wellington v. Classon, 18 How. 10; 9 Abb. 175); provided the plaintiff moves promptly after the alswer; if he suffers further costs to be incurred, after he has knowledge of the defense, he must pay such subsequent costs before he will be permitted to discontinue (St. John v. Hart, 16 How. 192). And where defendants were minors, and obtained merchandise on credit, and, when sued, interposed the plea of infancy, the plaintiffs were permitted to discontinue without costs (Van Buren v. Fort, 4 Wend. 209; see ante, in note to § 305).

g. Discontinuance of actions by overseers.-Overseers of the poor, after the expiration of their term of office, and after others have been elected to their places, cannot discontinue an action previously commenced in their names as overseers (Wright v. Smith, 13 Barb. 414).

h. Discontinuance in actions to recover possession of personal property.-See ante, p. 306, c.

i. Discontinuance as to one defendant at the trial.-Where, on the trial, the plaintiff asks for leave to discontinue as to a defendant who has answered separately, he may be permitted to do so, but it should be on the condition of paying the costs of such defendant (Marks v. Bard, 1 Abb. 63). See ante, in note to § 305.

j. Discontinuance after supplemental complaint.—Where a plaintiff, in a supplemental complaint, claims the same relief as that claimed in the original complaint, if he discontinues, it must be on payment of costs in both actions (Fisher v. Hall, 9 How. 259).

k. Discontinuance without notice to attorney.—Where after a a defendant has appeared by attorney, and after issue the plaintiff obtains a consent from the defendant in person for a discontinuance, and fails to notify the attorney, or to enter an order for a discontinuance, a judgment by default dismissing the complaint with costs, taken by such attorney, will not be set aside except on payment of costs (Pilger v. Gore, 12 Abb. 244; 21 How. 155).

1. Discontinuance of appeal.—An appellant cannot dismiss his appeal by serving a notice of discontinuance; he must enter an order to discontinue and pay the costs (Burnett v. Harkness, 4 How. 158; and see Gale v. Wells, 7 How. 191; Porter v. Jones, id. 192; Warren v. Eddy, 13 Abb. 28; 32 Barb. 664).

m. Election to discontinue.—An order at special term provided that