Richardson v. Thedford , 39 N.Y.S. 307 ( 1896 )

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.