Benjamin Hyde, Appellant, v. Charles W. Anderson, Individually, and Charles W. Anderson and Robert C. Anderson, as Copartners Doing Business under the Firm Name of C. W. Anderson & Son, Defendants. Robert C. Anderson, Respondent

Benjamin Hyde, Appellant, v. Charles W. Anderson, Individually, and Charles W. Anderson and Robert C. Anderson, as Copartners Doing Business under the Firm Name of C. W. Anderson & Son, Defendants. Robert C. Anderson, Respondent. Second Department, March 22, 1906. Trial—leave to discontinue action — absolute order of discontinuance •unauthorized — costs must be conditional—judgment for costs improper. ' , Ón a motion at Special Term for leave to discontinue an action an absolute order of discontinuance with full costs to .the defendant is unauthorized. A' j.udg■ment may not he entered for such costs allowed on motion. On such motion the court can only impose costs as a condition of discontinuance; leaving the plaintiff free to discontinue-arid pay the same, or go on with the action. Appeal by the plaintiff, Benjamin Hyde, from an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of June, 1905, denying the plaintiff’s motion to vacate a judgment for costs theretofore entered in said clerk’s office in. favor of the defendant Robert O.. Andérson. • _■■■■■ . The plaintiff made a motion to the Special Term for leave to discontinue. Instead of making a conditional order that the' plaintiff might, discontinue on payment of costs, the court’s order was a discontinuance of the action and that the plaintiff should pay full costs. On this the defendant had the clerk enter judgment for the costs. The plaintiff made a motion to the Special Term to set aside this judgment as unauthorized, and it was denied; and this appeal is from that order. Sanders Shanks [Andrew F. Van Thun, Jr., with him on the brief], for the appellant. Frederick W. Sparks, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The order should be reversed and the motion granted. The judgment was unauthorized ; judgment may not be entered for costs allowed on a motion (Code Civ. Proc. § 779). Moreover, the order of discontinuance should not have been absolute, as it was. It could only impose the costs as a condition of discontinuance, and then the plaintiff would have been free to pay the costs and discontinue, or go on with the action. Order reversed with costs and disbursements, and motion, granted with costs. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.