Jonas M. Kilmer, Appellant, v. Evening Herald Company, Respondent

Jonas M. Kilmer, Appellant, v. Evening Herald Company, Respondent. Discontinuance of an action for libel—a stipulation by the plaintiff not to bring another action, not required as a condition thereof — when an additional allowance is properly imposed. Where, on a motion to discontinue an action oí libel on the calendar at a Trial Term, it appears that no rights of the defendant will be injuriously affected by such discontinuance, the court has no power to require the plaintiff, as a condition of the discontinuance, to file a stipulation not to bring another action for the same cause. The court may, however, 'require the plaintiff to pay to the defendant an extra allowance of §225, where it appears that the complaint demanded judgment for §25,000 and that the questions presented were difficult and called for more than ordinary investigation in preparation for trial. Appeal by the plaintiff, Jonas M. Kilmer, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 25th day of January, 1902, requiring and directing as a condition for the discontinuance of the action the payment to the defendant of an additional allowance of $225 and a stipulation not to begin another action for the same alleged cause. The complaint charges the publication by defendant of libelous matter and seeks to recover .$25,000 as damages. The answer denies that the publication was wrongful, false or malicious, alleges matter was privileged, alleges matter in mitigation of damages, and matter which defendant claims to prove in justification of the publication. The action was not tried. No. witness on either side had been examined. The cause being on the calendar at a Trial Term, plaintiff made application to discontinue. The defendant asked that as a condition of discontinuance the plaintiff should be required' to pay an- additional allowance and costs, and file a stipulation not to bring another action for the same cause, and against the protest of plaintiff such conditions were incorporated in the order. Israel T. Deyo, for the appellant. Theodore R. Tuthill, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: In Matter of Petition of Butler (101 N. Y. 307) it was held : “ Ordinarily a suitor has a right to discontinue any action or proceeding commenced by him and his reasons for so doing are of no concern to the court. A party should no more, be compelled 'to continue a litigation than to commence one except where substantial rights of other parties have accrued and injustice will be done to them by permitting the discontinuance. In such a case, through the. control which the court exercises over the entry of its order, there is discretion to refuse; but where there are no such .facts and nothing appeal’s to show a violation of the right or interest of .the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary and without any basis upon which discretion can exist.” In Winans v. Winans (124 N. Y. 145) the court said : “ But an application for leave to discontinue is addressed to the legal not the arbitrary discretion of the court and it cannot capriciously deny it.” It would, therefore, seem that ordinarily discontinuance is a right, and leave to discontinue is not a favor asked. Without doubt in the action before us the plaintiff had a right to discontinue his action, and a refusal of leave to discontinue would have been a capricious denial. There were no rights of defendant which could have been injuriously affected by such discontinuance. There were no interests of defendant to be protected or which could be protected by a continuance of the action. Matter, etc., Waverly Water Works Co. (85 N. Y. 479), cited by respondent, presents quite a different case. There the matter was by law placed in the discretion of the court and it was a favor plaintiff was asking, not the recognition of a right, and the court says: “ The right to impose such conditions grows out of and is included in the right to refuse the discontinuance altogether.” So we have in all these cases in effect a declaration that if the right to refuse an application for discontinuance altogether does not in a given case exist the court has no right to impose arbitrary conditions, and also that ordinarily the right to discontinue an action on payment of costs and allowances is as broad and as clear as the right to commence an action, and the suitor’s reasons in either case are of no concern to the court. This must lead to the conclusion in the case before us that the Special Term had no power to impose, as a condition of discontinuance, the filing of a stipulation not to sue again for the same cause. It is no answer to say that plaintiff is asking a favor of the court in asking leave to discontinue, and he must take the order with any condition the court imposes or leave it untaken. By askijig leave to discontinue the plaintiff asks the court to adjudicate upon the case and. facts before it that defendant by discontinuance will not be injuriously affected. That is a legal proposition and is not addressed to the judicial discretion. The appellant urges that the extra allowance of $225 was improper. At the time the application was made to discontinue the application for an allowance was made. The Code of Civil Procedure (§ 3253) provides for an additional allowance “ in a difficult and extraordinary case (where a defense has been interposed in an action).” It is not necessary that there should have been a trial to warrant the allowance. The apparent object of this provision is to supply a method of at least partial compensation to the prevailing party for the expense necessary in the litigation not covered by the taxable costs. The questions presented in this case, as the record before us shows, were difficult and called for more investigation than ordinary in preparation for trial. Expert counsel, as a matter of reasonable prudence, were engaged both by plaintiff and by defendant to assist the attorneys of record. The court, we think, was justified in making an additional allowance, and the sum he fixes appears to ús reasonable. , The order, however, must be modified by striking out the provision requiring the plaintiff to stipulate not to bring another action against defendant for the same cause, and as so modified the order is affirméd, with ten dollars costs and disbursements to appellant. All concurred. Order ' modified by striking out provision requiring plaintiff to stipulate not to bring another action against the defendant for the same cause, and as so modified affirmed, with ten dollars costs and disbursements to appellant.