ROBINS v. GOULD

ROBINS v. GOULD. N. Y. Supreme Court; Special Term, October, 1876. Allowance on Discontinuance. It is proper, in difficult and extraordinary cases, to require payment of an allowance in addition to costs, as a condition of leave to discontinue. Motion for allowance in addition to costs, as a condition for permitting plaintiff to discontinue. The action was in the main similar to those of Chatterton v. Fisk (p. 88 of this vol.), and Mills v. Gould (p. 93). Thomas C. Shearman (Shearman & Sterling, attorneys), for the motion. I. It is constant practice to grant an allowance upon a discontinuance, when it appears that large expenses have been incurred before trial. In Troxell v. Haynes (Common Pleas, 1875), Judge Robinson granted the full allowance of five per cent, on a discontinuance. In Zaun v. Phillips (Superior Court, Jan. 14, 1875), an allowance was granted by Sanford, J., on a discontinuance, the case not having approached trial; and the order was affirmed on appeal to the general term. In a recent case in this court, the cause being called for trial, plaintiff-asked leave to discontinue ; and Mr. Justice Barrett granted a dismissal with an allowance of $250. II. The facts of this case establish a strong claim for an allowance. Wheeler II. Peckham (Miller, Stoutenburgh & Peckham, attorneys), for plaintiffs. See to the same effect, Bright v. Milwaukee R. R. Co., p. 14 of this volume. I am informed that in Dusenbury v. Hiler, in the New York Supreme Court, Curtis, C. J., on October 13, 1876, after argument upon the power of the court to do so, granted an allowance of one hundred dollars, as a condition of discontinuance, upon the application of two defendants where there were a number of other parties defendants. In the case of Duperey v. Phœnix, decided October 17, 1876, the same justice decided that a trial fee of thirty dollars was properly taxable when a cause was discontinued while upon the day calendar, although it had not actually been called for trial. [MAJORITY — Barrett, J.] Barrett, J. I have no doubt that this case was an extraordinary and difficult one within the meaning of the Code. If the issues were at all similar to those in Taylor against the same defendant (tried before me two months since), the questions of law and fact were delicate and complicated. It certainly was not an ordinary action for breach of contract. The plaintiff, on the proofs contained in Mr. Shearman’s affidavit, is fairly entitled to a moderate allowance, and I think that, considering the amount involved, and the labor and expense stated, $500 would be but reasonable.