I concur in the reasoning and conclusion reached by Judge BISCHOFF upon this appeal. In my opinion, it was incumbent upon the defendant to prove that the costs imposed upon the discontinuance of the former action had not been *42paid. See Tracy v. Tracy, 59 Hun, 1, 12 N. Y. Supp. 665; Lent v. Railway Co., 130 N. Y. 504, 29 N. E. 988. In the absence of such proof, the judgment should be affirmed, with costs.