The first question, which arises on this appeal, is whether an appeal will lie to this court from an order of the general term, affirming the order of the special term, discontinuing this action without costs.
The second subdivision of section eleven of the Code allows an appeal to this court, from an order affecting a substantial right nlade in an action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action, (Code, § 11, subd. 2). This order discontinues the action, and the only question in the case is, whether it affects a substantial right.
I do not think the defendant’s claim to costs, at the stage of the action when this suit was discontinued, can be regarded as a substantial right. A substantial right must be *183one, not only involving some material interest, but existing absolutely by force of law. While the suit is pending and undetermined the claim to costs does not constitute an absolute right. They area mere consequence attached by law to a final judgment on the question of a substantial right, and they become a substantial right of the suitor only on such final determination and judgment upon the rights of the parties in the action.
The rule in regard to costs, where the court grants leave to the plaintiff to discontinue his action without bringing the issues to trial, cannot be said to be one absolutely of law or resting in absolute legal right. The question of costs, in such cases, rests upon the practice of the courts, depending very much upon discretion. The courts have allowed or disallowed them, as they have deemed the claims to them just or unjust. In actions at law, the supreme court has always regarded itself, upon such applications for leave to discontinue, as endowed with equity powers over the question, both of discontinuance and costs. I will not go over the cases where the supreme court has assumed to exercise this power, but will barely refer to the following cases, where the supreme court has claimed and exercised this power, and they extend through the whole judicial history of the state. (18 Johns., 252; 1 Wend., 91; 4 Hill, 592; 1 How., 122 ; 10 How., 141; 18 How., 10; 19 How., 413 ; 4 Abb., 16; 5 Abb., 230 ; 1 Bosw., 329), and the practice of the supreme court, in this respect, seems to be approved by this court in Staiger agt. Shultz, (3 Keyes, 614-616). Judge Bookes, in speaking for the court, at page 616, says: “It has always been the practice to permit actions to be discontinued in the discretion of the court without°costs, even in suits at law, when the defendant had obtained a discharge under the insolvent laws and in many other cases. Such permission existed as a matter of practice, resting in the discretion of the court, and could not be overruled on appeal.”
*184I am of opinion, for the reasons stated, that this appeal should be dismissed.
If the order appealed from is to be reviewed in this court, then it should be affirmed.
The defendant and his counsel knew that they had this release, and omitted to plead it; but when the cause is ready for trial, they present the releasé to the plaintiff’s counsel and inform him that he may as well discontinue his action, as.they have the release which is a perfect defense to the action, and they claim it as such. It is true, they had not pleaded it, and could not have given it in evidence under the pleadings, as they stood; but they did claim it and insist upon it as a defense, and the court would have allowed them to set it up and would, undoubtedly, if such an application had been presented to the court, have allowed the plaintiff to discontinue his action, without costs, as a condition, if the plaintiff had desired to do so.
The defendant, having presented the release and insisted on it as a complete bar to the action, has got just what he would have got when he came to make his motion for leave to plead the release, and I do not see that he has any reason to complain. The defendant knew of this release, which his testator had obtained from his partner in business, who was the plaintiff’s trustee, and concealed the fact from the plaintiff and allowed him to bring this action in ignorance of any such defense; and the presentment of it, after issue joined in the action, was a surprise,to the plaintiff.;•
The case was one, therefore, where it was very proper to allow the plaintiff to disoontinue his action without costs. At any rate, it was allowed by the legal discretion vested in the supreme court, and which is not reviewable in this court on appeal.
Appeal dismissed, with costs to .respondent.
This is correct, and I have no objection to your publish ing it. Charles Mason.