SECOND DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. of the said charter and subsequent to the passage of the Greater New York charter. If, then, it be conceded that no police force existed in this village prior to, or at the time of, the passage of such charter, can it be seriously argued that the Legislature intended, or could have intended, that during about the period of six months, intermediate the passage of such charter in May, 1897, and January 1, 1898, these villages or towns, or any of them, could proceed to organize within themselves such police forces as they saw fit for so short a period, and on January 1, 1898, have them transferred by operation of law to the police force of the city of New York, without question as to their fitness or other sanction than the will of such trustees?" Whatever might be the opinion of this court upon the ingenious argument thus presented in support of the action of the commissioners of the police board in refusing to recognize the relator as a member of the police force of the city of New York, if we were free to express an opinion, we are confronted by a provision of law directly bearing upon this point, which compels us to disagree with the conclusion suggested. Section 1611 of the Greater New York charter provides that "for the purpose of determining the effect of this act upon other acts and the effect of other acts upon this act, this act shall, except as in this section is otherwise provided, be deemed to have been enacted on the first day of January, eighteen hundred and ninety-eight. This act shall take effect on the first day of January, eighteen hundred and ninety-eight; provided, however, that where by the terms of this act an election is provided or required to be held or other act done or forbidden prior to January first, eighteen hundred and ninety-eight, then as to such election and such acts, this act shall take effect from and after its passage, and shall be in force immediately, anything in this chapter or act to the contrary notwithstanding." The charter of the Greater New York, then, in so far as it affected the police force, or operated to repeal the charter of the village of College Point, must be deemed to have been enacted on the 1st day of January, 1898, at which time the relator was a member of the police force of the village of College Point, and, under the rule laid down by the defendants, would be entitled to recognition as a part of the police force of the city of New York. While it is probably true that the Legislature did not contemplate App. Div.] SECOND DEPARTMENT, OCTOBER TERM, 1898. that the various towns and villages would materially increase their police force, there can be no reasonable doubt that these communities, acting within the limits of their charters, had a legal right to do so until their charters were repealed by operation of the Greater New York charter, which provides in section 1615 that "upon the taking effect of this act on the first day of January, eighteen hundred and ninety eight, all the municipal and public corporations, except counties, which by this act are consolidated with the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York, shall cease and determine, and their powers to the full extent of legislative power in this behalf are respectively devolved upon the corporation of the city of New York as herein. constituted and the municipal assembly thereof, unless otherwise expressly provided in this act or by law." If these towns and villages had the right to appoint a police force, they had, as a necessary incident to that power, the right to provide for their compensation, and where a public body, charged with the duty of controlling and paying the compensation of a police force, refuses to recognize the claims of those legally constituting such police force, we know of no objection to proceeding by mandamus to compel compliance with the law. (People ex rel. Nugent v. Police Commissioners, 114 N. Y. 245; Hagan v. City of Brooklyn, 126 id. 643.) The order appealed from should be affirmed, with costs. All concurred. Orders affirmed, with ten dollars costs and disbursements. ELIZABETH A. WALSH, as Executrix, etc., of THOMAS WALSH, An order permitting a plaintiff to discontinue will not be disturbed on appeal because The exercise of the discretionary power of the Special Term in allowing the plaintiff to discontinue an action on the payment of costs will not be disturbed by the Appellate Division, because the defendant has set up an affirmative defense in the nature of a counterclaim, unless it appears that the defendant has been deprived of some substantial right by reason of such discontinuance. 33 579 45 33 33 579 58 368 SECOND DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. APFEAL by the defendant, Augustin Walsh, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of June, 1898, denying the defendant's motion to vacate an order obtained by the plaintiff permitting her to discontinue the action on payment of costs, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of July, 1898, resettling the said order. Howard A. Taylor, for the appellant. C. D. Rust, for the respondent. WOODWARD, J.: The defendant and his brother, Thomas Walsh, were for several years partners in the business of constructing piers, docks, etc. On the 16th of September, 1895, Thomas Walsh died, leaving a will, in which the plaintiff was named as sole executrix. On the theory that she was entitled to a larger share of the copartnership property than the defendant was willing to allow her, the plaintiff commenced this action, the points in controversy being shown in the complaint and answer. The action progressed to a point where a referee was named to hear and determine, when the plaintiff decided that it was not profitable to continue the litigation. She thereupon directed her attorney to pay the costs of the action, and to discontinue the same; and, acting upon these instructions, the attorney applied to a Special Term of this court and obtained ex parte an order of discontinuance. This order, was duly served upon the defendant's attorneys, and a motion was made to vacate the order of discontinuance. An order was made denying this motion, from which the defendant brings an appeal to this court. It is conceded that as a general proposition the plaintiff has a right to discontinue an action on the payment of costs; but it is urged in the present case that the defendant having set up an affirmative defense in the nature of a counterclaim, he is entitled to the protection of a judgment which shall dispose of the controversy. We are unable to discover anything which would justify this court in interfering with the discretion exercised by the Special App. Div.] SECOND DEPARTMENT, OCTOBER TERM, 1898. "In ordinary Term in granting the order of discontinuance. actions," say the court in Matter of Lasak (131 N. Y. 624), "it is not always the absolute right of a plaintiff to discontinue his action. In all cases where a defendant becomes an actor and is interested in the continuance and trial of the action, as where he sets up a counterclaim or sets up a claim to property which is in litigation, and asks in his answer affirmative relief in reference thereto, he may resist the discontinuance of the action, and then it rests in the discretion of the court whether or not the plaintiff shall be permitted to discontinue it." This is the condition in the case at bar, and in the absence of facts establishing that the defendant is deprived of some substantial right by reason of the discontinuance, it does not seem to be the duty of this department to interfere with the discretion exercised by the Special Term. 66 Ordinarily," say the court in Matter of Butler (101 N. Y. 307), "a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court. A party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance. In such a case, through the control which the court exercises over the entry of its order, there is discretion to refuse; but where there are no such facts, and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary and without any basis upon which discretion can exist." In the case at bar the defendant is deprived of no right; he stands exactly where he would have stood had no action been commenced; and the mere possibility that the plaintiff may, at a future time, bring a new action upon the same grounds, is not sufficient to justify this court in reversing the order of the court below. As was said in Matter of Butler (supra): "All costs of the discontinued proceeding are to be paid, and have been tendered. The defendant acquired no new rights. He is left precisely in the position he would have been in if the proceeding in the Common Pleas had never been commenced, and the action in the Supreme Court alone had been brought. Would that action have unnecessarily harassed' him? We can see no just basis for the refusal of SECOND DEPARTMENT, OCTOBER TERM, 1898. [Vol. 33. leave to discontinue upon which any discretion was called into exercise, or could operate." The cases relied upon by the defendant will be found, upon examination, to be confined to matters in which the defendant has substantial rights which must be sacrificed by a discontinuance, or where the peace and good order of the community are involved. In the case of Iselin v. Smith (62 Hun, 221) the plaintiff had fenced in what he claimed to be his private road, which ran in front of the premises of the defendants. The fence shut the defendants off from the road and they tore it down. The plaintiff commenced an action to restrain the defendants from interfering with the fence. The defendants, answering, asserted a right to the use of the road because the road was a public highway, and asked for an injunction restraining the plaintiff from constructing the fence. The plaintiff asked leave to discontinue the action upon the payment of the costs and disbursements, and the leave was granted. The defendants appealed, and the court say: "The plaintiff ought not to be permitted to discontinue his action unless, upon stipulation, to never again close the defendants from access to the road. If he is not willing to do this, let the defendants have an opportunity, under the answer, to prove their defense and get an affirmative judgment." This decision was evidently dictated by considerations of public policy, rather than the rights of the individual defendants, and the court was justified, no doubt, in exercising its discretion in favor of the defendants, but there are no such conditions in the case at bar. There is nothing to be lost to the defendant by reason of any delay in reaching an adjudication should he see fit to commence an action for the purpose, and we see no reason why the plaintiff should not be permitted to withdraw from the present litigation upon the payment of the costs. In the case of Van Alen v. Schermerhorn (14 How. Pr. 287) an order discontinuing an action was refused where a counterclaim had been set up, against which the Statute of Limitations would be a bar, if the suit was discontinued. In the case of Carleton v. Darcy (75 N. Y. 375) the plaintiff had succeeded in getting possession of premises from a tenant by virtue of a judgment. The defendant paid the costs and took a new trial under the statute. The plaintiff, still in the possession of the prop erty, asked leave to discontinue the action, and this was denied. |