(dissenting). This suit in equity had been pending for nearly three years when plaintiff moved for leave to discontinue it. The complaint charged infringement of plaintiff’s trade-mark “ Atophan ” and averred that defendants had deceived the public and thereby achieved profits from the sale of that drug. It asked injunctive relief and large damages.
The amended answer in its present form was interposed in May, 1929. Motions were made attacking the sufficiency of some of its defenses. In its present form it carries no less than thirteen separate and distinct affirmative defenses. In lieu of defendants’ examination before trial, a statement of the material facts of the complaint in issue, signed by defendants, was delivered to plaintiff’s attorneys more than two years ago. In order to plead these affirmative defenses and to prepare for their establishment at trial, defendants were compelled to expend large sums of money for counsel fees and investigations, involving searches in the Patent Office at Washington, the acts and records of the Alien Property Custodian in the seizure and later transfer of alien property, and many intricate questions in the field of chemistry and pharmacology.
Plaintiff does not deny the statements in defendants’ affidavit as to the oppressive character of this litigation. It assigns as the sole reason for a present discontinuance its intention to institute a new action because defendants are said to use a different label from the one in use when this action was started. There is no dispute, however, that such label contains the mark “ Atophan,” and "the one is consequently as offensive to plaintiff as the other. Defendants are thus to be harassed by another suit. No adequate reason is given why plaintiff on its own statement should not seek leave to plead again herein.
Plaintiff’s motion addressed to the favor of the court was granted upon condition that $500 be paid defendants, instead of ten dollars costs. Plaintiff has appealed from so much of the order as imposes that condition.
The determination of terms lay in the sound discretion of the Special Term. Where litigation of importance is started, the conduct of which necessarily imposes large expense upon the parties *346sued., it is but right that a reasonable part of such expense should be borne by the unsuccessful plaintiff which started the suit, which it is unwilling to try in court and now wishes leave of court to abandon. This discontinuance may save plaintiff from the trade consequence of defeat in this action. It appears that defendants’ customers have been advised of its pendency and threatened with like suit by plaintiff. A discontinuance, as contrasted with a possible dismissal of the complaint, may under the circumstances be of no slight advantage to plaintiff.
The power of the Special Term to fix reasonable conditions upon which an order of discontinuance may be entered is undoubted. (Matter of Waverly Water Works Co., 85 N. Y. 479, 482; Kruger v. Persons, 52 App. Div. 50; Willetts v. Browning, 198 id. 551; Jermyn v. Searing, 139 id. 116.)
The order appealed from should be affirmed, with ten dollars costs and disbursements to respondent.
Finch, P. J., concurs.
Order so far as appealed from modified by striking out the provision for payment of $500, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.