Dambmann v. Schulting , 13 N.Y. Sup. Ct. 29 ( 1875 )

Davis, P. J. :

The order in this case provided that the plaintiff have leave to discontinue the above entitled action, upon payment to the defendant of taxed costs, and the sum of $100, granted as an extra allowance herein. The plaintiff appealed from so much of the order as awards the allowance of $100 to the defendant. But it appears that, before bringing this appeal, he had paid the costs and allowance, and availed himself of the leave to discontinue which the order gave upon the condition of payment. His affidavit states that he paid the $100 under protest. From the peculiar form of the order, we think he could not avail himself of its benefits, without complying with its conditions, and that his compliance with the conditions was a waiver of his right to appeal. This court held, in Qojjrn v. Colee (4 Hun, 616), that, in difficult and extraordinary cases, an additional allowance may be made, under section 309 of the Code, where the plaintiff discontinued the action before trial on payment of costs. It cannot be said, therefore, that the court below, in following that decision, acted in excess of its power ; and probably the appeal would only bring before us the question whether or not the discretion of the court below was improperly exercised under the circumstances of this case. If the appellant desired to review that question, we think he should have refrained from availing himself of the conditional leave given by paying the costs and allowance imposed, until he could bring the question before this court by appeal.

Motion to dismiss the appeal should be granted, but, under the circumstances, without costs.

Daniels and Brady, JJ., concurred.

Motion granted, without costs.