I do-not concur with Mr. Justice Hatch. The application to discontinue this action was made before the determination of the issues presented and before the right of the defendant’s attorney to any costs had accrued. It is conceded that there was no cause of action upon which he could have a lien; and the only contingency in which he would be entitled to costs would be a decision or verdict *180in favor of the defendant upon the trial of the action. The court certainly would have no right to compel the plaintiff to continue the action, or to allow the defendant’s attorney to continue the action for the purpose' of ascertaining whether or not there would be a decision or verdict in favor of the defendant. There was, therefore, nothing to justify the court in refusing to discontinue the action, all parties to the action consenting .thereto, simply for the reason that if it had been determined that the defendant was entitled to a decision or verdict in his favor his attorney would be entitled to costs from the plaintiff. I- think the order should be affirmed.
Van Brunt, P. J., concurred.
Order reversed, with ten dollars costs and disbursements.