#### James S. Metcalfe, Appellant, *v.*Marc Klaw and Others, Defendants, Impleaded with Charles Burnham, Respondent.

First Department,

February 5, 1909.

Practice'— discontinuing action — when payment of extra allowance not required—redress for criminal prosecution.

Leave to discontinue an action brought to recover damages for an alleged conspiracy in excluding the plaintiff from certain theatres so as to prevent him from pursuing his avoca.tion as a dramatic critic, should not be conditioned upon the payment of an extra" allowance of *$500*in addition to the taxable costs.

This is so, although the defendant was put to the expense and annoyance "of defending a criminal prosecution instituted by the plaintiff for the same offense, for the latter was an independent action and the defendant, if entitled to indemnification, should seek the same in an action for malicious prosecution.

Appeal by the plaintiff, James S. Metcalfe, from part of an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of October, 1907, granting an additional allowance as a condition for the discontinuance of the action as to the defendant Burnham.

*Samuel H. Ordway,*for the appellant.

*Herman Aaron,*for the respondent.

Scott, J.:

The plaintiff commenced an action in 1906 against the respondent Burnham and several others claiming that they had entered into an unlawful conspiracy to exclude him from the several theaters in the city of Mew York controlled by them, and thus prevent him from pursuing his avocation as a dramatic critic.

The damages were laid in a considerable sum. Answers were served, but nothing further was done in the action. A criminal prosecution was also instituted against the respondent Burnham. The latter was held by the committing magistrate, but sued out a writ of habeas corpus upon which it was finally held by this court and the Court of Appeals that upon the facts a criminal prosecution would not lie. (See *People ex rel. Burnham*v. Flynn, 114 App. *503Div. 578; 189 N. Y. 180.) The grounds upon which this result was arrived at made it apparent that the plaintiff could not succeed in the present action. A motion was, therefore, made for leave to discontinue upon payment of costs. The motion was granted as to all of the defendants except Burnham, but as to him it was provided, as a condition of discontinuance, that the plaintiff must pay an extra allowance of $500 in addition to the taxable costs. From so much of the order as imposes the payment of the extra allowance, plaintiff appeals. It is quite clear, under the rules which now prevail respecting the granting of extra allowances, that this is not a case, considered by itself, in which an extra allowance should be granted. *(Standard Trust Co.*v. *N. Y. C. & H. R. R. R. Co.,*178 N. Y. 407; *Campbell*v. *Emslie,*188 id. 509.) It is sought to sustain it, however, upon the plea that the respondent should be compensated in this action for the expense and annoyance to which he was put in the criminal proceeding. ' This argument is, as we think, untenable. This action and the criminal prosecution were quite distinct proceedings, having no relation to or bearing upon each other, except that they rested upon similar questions of fact and law. The plaintiff was entitled to institute both or either as he saw fit. If the criminal proceeding was so unfounded as to amount to a malicious prosecution, the law affords the respondent a means of procuring indemnification. If it was not so unfounded, the law has not provided‘for indemnification, and lie cannot secure indirectly what the law has refused him directly by obtaining an extra allowance in another action, the facts of which, taken by themselves, would not justify an allowance. The order so far as appealed from will be modified by striking out the provision for an extra allowance, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.