Michael v. Wenning

McAdam, J. An order of discontinuance terminates the action in which it is made, and works a dissolution of any provisional remedy granted therein (Hope v. Acker, 7 Abb. Pr. 308). It is, in short, a final determination of the rights of the parties in an action (Crockett v. Smith, 14 Abb. Pr. 62). If the discontinuance be with costs or on payment of costs, the defendant may have the amount thereof taxed and enter judgment therefor, but if the discontinuance be without costs, the order operales as a final adjudiciation that the defendant is not entitled to any costs. The effect of the final order or judgment in the present case was to destroy the defendant’s right to the/interlocntory cos is awarded to him on the motion made during the progress of the action. These costs were but incidental to (he action, and when the final order was made directing a discontinuance of the action, the incident was merged in the principal thing, i.e., the final order, which operates as a sort of final judgment. The action was not pending for any purpose at the time the precept herein was issued, and a precept can only issue in an action actually or constructively pending. After judgment in favor of a party, the action is deemed to be pending so far as the enforcement of such j udgment is concerned. But a final order determining that the action shall be discontinued “without costs,” means that, so far as that action is concerned, the defendant is to have- no costs. This, it seems to me, must be the effect of sucli an order, where, as in this case, no reservation of the motion, costs was made in such final order or judgment. It follows that -the precept issued herein.must be set aside. No costs.