Probst v. Leggett

MacLEAN, J. After the trial had been begun, and a witness sworn u.nd examined, the plaintiff applied to discontinue the action, to which the defendants objected unless judgment of discontinuance were awarded them, with costs; but the judgment was rendered in favor of the defendants without costs. By section 248 of the Municipal Court Act (Laws 1902, p. 1561, c. 580) it is provided that “judgment that the action be dismissed with costs without prejudice to a new action, shall be rendered where the plaintiff voluntarily discontinues the action before it is finally submitted.” It was obligatory upon the trial justice to render judgment accordingly, and leave the question of taxation and review to be determined pursuant to the provisions of sections 341 and 342 of the same act (page 1589). See A. Blum, Jr., Sons v. O’Connor (decided at present term) 84 N. Y. Supp. 207. The judgment must be modified, therefore, by the addition of costs. Judgment appealed from modified by the addition of costs, and, as modified, affirmed, with costs to the appellants. All concur.