In Matter, Etc., Waverly Water-Works Co.

Earl, J. The Waverly Water Works Company instituted a proceeding under chapter 737 of the Laws of 1873, as supplemented by chapter 415 of the Laws of 1876, to acquire land from the appellant, the owner, for the purposes of the company. Commissioners were appointed by the Supreme Court to appraise the damages sustained by the owner, and after a hearing before them, they made their report appraising the damages at $7,200. After such report, and before the presentation thereof to the court for confirmation, the company made a motion to the court, upon notice to the owner, for leave to discontinue the proceeding. That motion- was opposed by the land-owner, but it was granted upon condition that the company pay to the owner his expenses, charges and counsel fees,, and.a referee was appointed to take proof of the amount of such expenses, etc. A hearing was had before such referee, and he reported the amount which should be allowed the owner, at the sum of $605. Upon a motion to confirm the .report, the court at Special Term reduce^ the amount to $375, and $50 for the fees of the referee, making together the sum of $425, and made an order granting leave to discontinue upon *481 payment of that sum. The company then appealed to the General Term, and there the order of the Special Term was reversed upon the sole ground that the court had no power to order, as a condition of the discontinuance, payment ef more than the taxable costs and disbursements, 'under the act chapter 270 of the Laws of 1854, section 3 of which provides as follows: “ In special proceedings and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions.” From the order of the General Term the land-owner brought this appeal.1 We think the learned General Term fell into error. The costs provided for in the act of 1854 are those to be allowed in the discretion of the court upon the termination of a special proceeding. It is not disputed, and could not be, that the company could discontinue this proceeding only by leave of the court in which it was pending. (In re Commissioners Washington Park, 56 N. Y. 144; Carleton v. Darcy, 75 id. 375.) The court could grant the leave or absolutely refuse it. The learned counsel for the company, in his brief submitted to us, says: “ It is true that there cannot be a valid discontinuance without an order of the court, and the court has the right to control the order and it may in its discretion refuse it.” The court, having the right in its discretion in such a case to refuse the discontinuance, can determine upon what terms it will grant it, and if it imposes terms which the party applying for the discontinuance is unwilling or unable to comply with, he is in no worse condition than he would have been if the refusal had been absolute. The court in which an action is pending may impose terms beyond taxable costs as a condition of the discontinuance of the action. It may require the plaintiff to stipulate that he will not sue again for the same cause of action; or that, if he does sue again, the defendant may usa the evidence already taken; or that he will not interpose the statute of limitations as a defense to a counter-claim which the defendant has set up in case he should sue the plaintiff thereon, or even that he will pay the counter-claim.. *482 The right to impose such conditions grows out of and is included in the right to refuse the discontinuance altogether. In all cases where a motion is made addressed to the favor of the court, which it may in its discretion grant or refuse, as motions to vacate attachments, orders of arrest, injunctions, or to open defaults, the exercise of the discretion not being limited by any statute, it may impose terms to be complied with as a condition of granting its favor, and if the moving party cannot or will not comply with the condition, the result is simply a denial of his motion, a result which the court could have produced by an absolute denial. '■ Here the- act of 1854 did not limit the discretion of the court. When an action or special proceeding has been commenced the defendant may have an interest that it shall be conducted to its termination, and in such case the court can protect such interest by refusing to permit the action or proceeding to be discontinued, or it may impose such reasonable terms as a condition of discontinuance as will fully protect or -indemnify the .defendant. . Here- the land-owner had been subjected to costs and expenses beyond what could be taxed under the act of 1854, and he had obtained a favorable award, and it would be quite unjust to deprive him of the fruits of the proceeding without a full indemnity for the expenses to which he was subjected. We have looked into the evidence taken before the referee, and believe that the condition imposed by the Special Term is not unreasonable, and, therefore, conclude that the order of the General Term should be reversed and that of the Special Term affirmed, with costs of appeal to the General Term and to this court. All concur, except Folq-er, Oh. J., absent. Ordered accordingly.