#### WILLIAM SUTPHEN, Appellant, *v.*SIMON A. LASH, Respondent.

*Discontinuance of*action— *Trial*fee— *Costs*— *'ochen judgment ma/y he entered for, on orden' discontirming the action*— Practice, *when action is disconiimted.*

After an action Rad been noticed for trial and placed upon tie calendar, and just as it was about to be moved for trial, an order was entered discontinuing tbe action upon payment of costs. *Held,*that tbe defendant was not entitled to include a trial fee in sucb costs.

Where an order is entered discontinuing an action on payment of costs, tbe defendant may, so long as tbe costs are unpaid, enter judgment tberefor and issue execution tbereon, or be may disregard tbe order and proceed witb tbe action as tbougb it bad never been entered.

*121Appeals from an order made at tbe Special Term denying a motion to set aside a judgment, and from an order denying a motion for a readjustment of costs.

This action was begun in 1870. On tbe 15th of February, 1876, tbe cause was called in its order on tbe calendar, and, tbe plaintiff not answering, tbe defendant’s attorney dismissed tbe complaint. Tbe defendant’s costs were thereupon taxed, and a judgment therefor entered in favor of defendant and against plaintiff. Upon tbe payment, by tbe plaintiff, of tbe sum of twenty-five dollars, this judgment was vacated by consent on tbe seventeenth of March, and tbe cause set down for tbe April term. While tbe cause stood in this condition on tbe April calendar, awaiting trial, tbe defendant’s attorney was served with a stay of proceedings, embodied in an order to show cause why plaintiff should not have leave to discontinue tbe action without payment of costs, returnable'April seventeenth. Tbe cause in tbe meantime being reached on tbe calendar, it was directed by tbe Circuit Court, upon these facts, that it stand till tbe eighteenth of April, in order that this motion might first be disposed of. Tbe motion was denied. Thereupon tbe plaintiff procured an order, April twenty-ninth, that tbe cause be discontinued on payment of costs to be taxed.

Tbe costs, including a trial fee, were taxed on tbe fifth of May, and, not having been paid, tbe defendant, on tbe twenty-fifth of May, entered judgment therefor.

*WilUam*Sutphen, in person, and *Demid W.*Oillett, for tbe appellant.

Tbe judgment was irregular. Plaintiff bad a right to enter tbe order allowing a discontinuance upon payment of costs, and it is well settled that tbe defendant cannot, under such an order of discontinuance, enter up a judgment for bis costs. *(Leonard*v. *Slaughter,*10 John. P., 376 [1813] ; *Hv/ntmgton et al.*v. Forkson, 7 Hill, 195 [1845] ; *Wightmam,*v. *Shcmklcmd,*18 How. Pr., 79 [1859]; *Hicks*v. Bremurn, 10 Abb. Pr., 304 [I860].) Tbe costs, as taxed, are in their nature interlocutory, and therefore cannot be collected by a judgment. *(Brown*v. Leigh, 50 N. Y., 427; *Wilhm et al*v. Ba/plee, 52 id., 248.)

*F. O. Bowma/n,*for tbe respondent.

*122Daniels, J.:

On tbe adjustment of tbe costs, tbe plaintiff objected tbat a trial fee sbould not be included in tbe amount. But, as it appeared tbat tbe complaint was dismissed on proof of service of a notice of trial at tbe circuit, tbat objection was properly overruled. *(Dodd*v. *Curry,*4 How., 123; *Tillspaugh*v. *Dick,*8 id., 33; *Shannon*v. *Brower,*2 Abb., *377.)*But after tbe default was taken it was set aside by consent for tbe sum of twenty-five dollars, paid by tbe plaintiff to tbe defendant’s attorney. And as tbe costs and disbursements to wbicb tbe defendant was entitled in tbe action were all included in tbe bill as it was adjusted, tbis sum sbould bave been deducted from its aggregate amount.. It was evidently a payment of so much in tbe way of costs, recoverable as a consequence of tbe default; and tbe plaintiff was entitled to derive tbat benefit from it.

Tbe amount was less than the costs and disbursements attending tbe default; but tbe plaintiff was none tbe less entitled to tbe benefit of it because of tbat circumstance.

Tbe cause was afterwards noticed and placed upon tbe calendar for trial, and, as it was about to be moved, tbe proceedings were stayed for a motion to be made for leave to discontinue without costs. Tbat was denied, and an order entered discontinuing tbe action on payment of costs. Tbe defendant claimed tbat tbis entitled him to another trial fee, within the casés of *Pomeroy*v. *Hulin*(7 How., 161), and *Jones*v. *Case*(38 id., 349); but neither of them, nor the other authority referred to, proceeds far enough to support tbat position. As the costs were not paid pursuant to tbe order, tbe action might bave been again dismissed, wbicb would bave entitled tbe defendant to another trial *fee;*but, as it stood when tbe bill of costs was adjusted, tbat could not properly be allowed. Tbe defendant was, then, entitled to but one trial fee, and from tbe amount of tbe bill tbe twenty-five dollars sbould bave been deducted.

After tbe costs were adjusted tbe defendant entered a judgment in tbe action for their recovery. Tbe plaintiff moved to set tbat aside as irregular, assigning as a reason in support of tbe motion, tbat a judgment cannot be entered on an order of discontinuance. Tbe defendant, it is well settled, bad tbe right to treat tbe order as a nullity without payment of tbe costs after their adjustment. He *123could have proceeded in the. action and dismissed the complaint, and then entered judgment for the recovery of his costs. But while he could take that course, he was not bound to do so. He had the power to waive that right, and regard the discontinuance as a termination of the action and enter a judgment for his costs upon it accordingly. This practice was allowed by the statute before the Code. (3 B. S. [5th ed.], 908, §§ 1, 4.) And it was followed by the courts. (1 Burrill’s Pr., 179, 383, 418.) The defendant had his election whether he would enter judgment and issue execution for the collection of his costs, where they remained unpaid, or disregard the order entirely and proceed with the action the same as though the discontinuance had not been ordered. And that has not been abrogated by the Code, because it is not inconsistent with any of its provisions. It is only where a preceding statute proves inconsistent with the Code that it has been repealed by that system. (§ 468.) Beyond that, the preceding rales and practice have been retained when they are found consistent with the changes made by the Code. (§ 469.) And the right to enter judgment for the collection of costs upon a discontinuance appears to have been in that manner preserved. This, in substance, was the view of the practice which was taken in *Crockett*v. *Smith*(14 Abb., 62), and *Pacific Mail Oo.*v. *Leuling*(7 Abb. [N. S.], 37-41).

The plaintiff has cited many cases which were supposed to conflict with the existence of this right, but the most that can be deduced from them has already been stated. The order of discontinuance, without the actual payment of costs, is a nullity as to the defendant, if he elects so to regard it; but he is under no obligation to the other party to so consider it. He may elect to regard it as an effectual termination of the action, and enter judgment for the recovery of his costs, as the defendant did in this instance.

The order denying the motion for readjustment of the costs should be reversed with the usual costs and disbursements to the appellant, and a readjustment ordered, unless the defendant, within twenty days after notice of this decision, stipulate to deduct twenty-five dollars from the amount recovered as the judgment now stands. If such a stipulation be given, then the order, as so modified, will be affirmed, without costs.

*124Tbe order denying tbe motion to set aside tbe judgment should be affirmed, with ten dollars costs besides tbe disbursements.

Davis, P. J., and Brady, J., concurred.

Order affirmed denying motion to set aside judgment with costs, etc. Order denying motion for readjustment of costs reversed, unless, etc., as stated in the opinion. Order to be settled.