Louisa A. Richardson, Plaintiff, v. George W. Thedford and Others, Appellants; Joseph B. Richardson, Respondent, Impleaded With Others

Louisa A. Richardson, Plaintiff, v. George W. Thedford and Others, Appellants; Joseph B. Richardson, Respondent, Impleaded With Others. Discontinuance — costs, to a party made a defendant at the instance of the defendant asking for such discontinuance. Where a defendant in an action applies to the court and obtains an order that a third person be made a party defendant, and in his answer demands affirmative relief against such defendant, and thereafter effects a compromise with the plaintiff and moves that the action be discontined, he should be required, ds a condition of such discontinuance, to pay to the party, made a defendant in the action at his instance, his taxable costs in the action. Appeal by the defendants, George W. Thedford and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of March, 1896, denying their motion for a discontinuance of the action without costs as to any party, and that the notice of pendency of the action be canceled and discharged of record as against the defendant Joseph B. Richardson, and from so much of said order as provides as follows: “ Ordered, that said motion be, and the same hereby is, granted in so far as the parties other than the defendant Joseph B. Richardson are concerned. “ Further ordered, that as to Joseph B. Richardson said motion is granted, provided that the defendants George W. Thedford and Peter J. Ryan, upon whose application Joseph B. Richardson was made defendant, and against whose property affirmative relief was demanded by the pleading of said defendants Thedford and Ryan, pay to M. C. Milnor, Esq,, attorney for Joseph B. Richardson, within ten days after the service of this order, the costs of the action before and after the notice of trial, five term fees, and $10 costs of this motion. “'Further ordered, upon payment of said costs,-that the clerk of the city and county of New York be, and he hereby is, directed to cancel and discharge of record the notice of pendency of this action filed in his office on the 7th day of March, 1893, in an action in the Court of Common Pleas in and for the city and county of New York, entitled Louisa A. Richardson against George W. Thedford, Sarah Thedford and Peter J. Ryan, defendants.” The action was brought originally against the appellants alone, to recover dower in certain real estate. The plaintiff claimed she was the widow of one Benjamin Richardson, who was during his lifetime the owner of the real estate, and who had conveyed the same to the appellant George ’W’. Thedford, representing himself to be unmarried. After issue had been joined in the action between the original parties thereto, the appellants, by motion, without notice to the defendant Richardson, procured an order to be made bringing defendant Richardson into the action as a defendant, and requiring the summons, complaint and lis pendens to be amended accordingly, and the summons and complaint to be served upon the defendant Richardson, and allowing the appellants to serve their answer to the amended complaint upon such defendant Richardson, the prayer for relief in such answer being that if the plaintiff be awarded dower in the real estate, it be assigned out of lands of which Benjamin Richardson died seized, in exoneration of the real estate of the appellants. Pursuant to this order defendant was made a party to the action, the summons, complaint and lis pendens, and appellants’ answer were amended and served, and the defendant Richardson made answer to the complaint and the appellants’ answer, and served the same upon plaintiff’s and appellants’ attorney. The plaintiff and the appellants thereafter agreed upon a settlement of the action, and made a stipulation of discontinuance and cancellation of the lis pendens. The defendant Richardson refused to join in such a stipulation unless his costs were paid, and thereupon this motion was made, and the order appealed from was entered. Edward W. S. Johnston, for the appellants. M. C. Milnor, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The defendant Richardson was entitled to be paid his costs as a condition of the discontinuance of the action and the cancellation of the lis pendens as to him. He was not a necessary party to the action, so far as the plaintiff or any relief sought by her were concerned. She did not make him a party to her action originally, nor did she voluntarily bring him into the action at all, or ask any relief whatever against him. The appellants procured an order requiring and compelling plaintiff to make him a party defendant. He was so brought in for the benefit of the appellants alone, so as to enable them to ask for equitable relief against him for their own protection. Under these circumstances the plaintiff could not be required to pay his costs, even if she were asking for a discontinuance of the action and the cancellation of the lis pendens herself. She was not, however, asking for any such thing. She did not join in the motion at all. The appellants made the motion to compel what the defendant Richardson would not consent to, unless his costs were paid by some one. The order as made did not deny the motion for a discontinuance and cancellation of the lis pendens, even if the costs were not paid, nor did it require the costs to be paid. It merely granted the appellants the relief they sought, upon condition that they pay certain costs. The order is silent as to what should result if they failed to-pay such costs. The appellants asked for a favor to terminate the action. All the parties had agreed to this, except the defendant Richardson. He had been brought into the action by the procurement of the appellants, had been made to incur the expense of defending himself against appellants’ allegations alone, and there was no reason why, if they wanted to terminate the action, they should not pay the expenses so made. The court, therefore, granted the relief sought by the appellants, upon condition they should pay the costs. It was a favor to them. If they do not desire the relief upon the condition, they need not accept it. They are then in the same condition as before the motion was made. The defendant Richardson can bring the action to trial, and the relief he will be entitled to at the trial, the plaintiff not prosecuting the action, will be a decree, in the discretion of the court, that the appellants pay his costs. The court had power to impose the condition that his costs incurred be paid. It did impose as such condition the payment of the taxable costs before and after notice, term fees and costs of the motion. There was no occasion . for the taxation of the costs by the clerk. The amounts were all understood. The only possible doubt is as to whether there was proof before the court that there were five term fees earned in the case, but we think that there was sufficient in the papers for the court to act upon. It appears the defendant Richardson’s answer was served as early as August, 1895, and that the case was put upon the calendar. The order of discontinuance was-not made until March 6, 1896. There were five terms between August, 1895, and March, 1896.- The court might well determine, from these uncontradicted facts, that there had been five term fees earned. So that the condition imposed was merely and only the payment of defendant Richardson’s taxable costs, and ten dollars costs of the motion. "We see no reason to differ with the Special Term as to the relief afforded. The order appealed from should be affirmed, with ten dollars costs and disbursements. Barrett, Rumsey, Patterson and Ingraham, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.