#### Joseph Schlegel, Appellant, *v.*The Roman Catholic Church of the Most Holy Trinity, Respondent.

Second Department,

February 28, 1908.

Costs — discontinuance of action contesting, will —^ when extra allowance to defendant not authorized.

Where after issue joined but before notice of trial the plaintiff moves to discontinue an action brought.to declare a devise to a religious corporation invalid on the ground that the defendant received more than half of the estate contrary to the'provisions of chapter 360 of the Laws of 1860, the discontinuance should not be conditioned upon the payment of an additional allowance, to the defendant, but should require the payment of taxable costs-only.

As no interest of the defendant was changed by the discontinuance of the action, plaintiff had an absolute right to discontinue on the payment of taxable costs, and the court had no discretion to impose other terms.

Appeal by the plaintiff, Joseph' Sclilegel, from an order "of the Supreme Court, made at the Kings County Special Term-' and *503entered in the office of the cleric of the county of Kings on the 12th day of December, 1907, permitting the plaintiff to discontinue his action on the payment of the taxable costs and an additional allowance of seventy-five dollars, the appeal being from so much of the order as grants the additional allowance.

*James E. Einegan \_F. G. Dunham*with him on the brief], for the appellant.

*Jolm F.*Carew, for the respondent,

Woodwaed, J.:

The plaintiff brought am action, the purpose of which was to declare invalid certain devises to the defendant in the last will and testament of the late Adam Scldegel, it being alleged that the defendant received more than one-half of the estate of deceased, in violation of the provisions of chapter 360 of the Laws of 1860. The pleadings are not set forth in the record before us, but the action was apparently an ordinary action under the statute, involving no difficult questions of law. The defendant put in an answer, making a general denial of the cause of action set up by the plaintiff. ¡Neither party noticed the case for trial. With the case in this situation, the plaintiff moved, on notice, to discontinue the action. This motion was opposed by defendant’s counsel, who made an affidavit in substance as follows :

“John F. Carew, being duty sworn, says, I am one of the defendant’s attorneys; I spent four days’ time and twenty-five dollars in disbursements, car fares, fees, etc., in investigating this qomplaint. The interest demanded-in the complaint 1 believe from such investigation would, amount to at least three thousand dollars. I ask that, if the plaintiff be allowed to discontinue, that it be on condition that he pay an allowance of one hundred and fifty dollars.”

The learned court at Special Term granted the motion to discontinue upon the payment of costs, with an additional allowance of seventy-five dollars, and the plaintiff appeals from so much off the order as grants the additional allowance, and denies the motion in default of payment of such sum.

The order appealed from should be modified by permitting the plaintiff to discontinue upon the payment of the taxable costs, with*504out the extra allowance. “ Ordinarily,” say the court in *Matter of Butler*(101 N. Y. 307, 309), “ a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court. A party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties, have accrued, and injustice will be done to them by permitting the discontinuance. In such a case, through' the control which the court exercises over the entry of its order, there is discretion to refuse; but *where*there are no such facts, and nothing appears to show a violation of the light or interest of the adverse party, the plaintiff may discon-' tinue, and a refusal of leave becomes nlerely arbitrary and without any basis upon which discretion can exist.” All that' appeared here was that the plaintiff had commenced an action by the service of a summons ánd complaint; that the defendant had put in a general denial, and that {lie plaintiff had moved to discontinue. There was no interest of the. defendant changed by the bringing of the action, or by its withdrawal. It had taken under a will; its right to take the property was secure unless it was contested, and the plaintiff elected to withdraw his contest. He had a perfect right to do this . *ex parte,*upon the payment of the taxable costs; the court had no lawful discretion to exercise in the matter, and it could not, therefore, impose terms. Where the motion is addressed to the favor of the court; where there are equitable reasons why the plaintiff should hot be permitted to withdraw, the court may, undoubtedly, impose any conditions it may deem proper *(Matter of Waverly Water Works Co.,*85 N. Y. 478, 482), but where there is no discretion to be exercised the court has no authority to name other- conditions than the payment of the taxable costs up to the time of the discontinuance.

It is true that it was held in *Kilmer*v. *Evening Herald Co.*(70 App. Div. 291) that an additional allowance, in a difficult and extraordinary case, might be- imposed where there was no trial, but in that case the action was on the calendar for the Trial Term when the motion was made, and the court imposed the condition that the , plaintiff should pay an additional allowance of $225. It appeared that the questions presented in the case were difficult and called for more investigation than ordinary in preparation for trial, and that *505expert counsel had been retained by both parties to assist the attorneys of record. This might give some equitable rights to the defendant which would justify the allowance. If it depended upon the rule laid down in section 3.253 of- the Code of Civil Procedure, so far as the court has pointed out, there was no ground for the allowance under the recent rulings of the Court of Appeals in *Standard Trust Co.*v. *N. Y. C. & H. R. R. R. Co.*(178 N. Y. 407) and *Campbell*v. *Emslie*(188 id. 509). Whatever the facts may .have been in that case, and however well justified the allowance may have been, there are no facts appearing in the record in this case to justify imposing.a condition, other than the payment of the taxable costs, and the order should be modified as above suggested, and as so modified affirmed.

Jenks, Hooker, G-aynor and Rich, JJ., concurred.

Order modified in accordance with opinion,.and as so modified affirmed, with ten dollars costs and disbursements to appellant.