We think these orders are erroneous. The Code (§§ 304, 305) allows costs, of course, in cases where a claim of title to real property arises on the pleadings. The complaint contained appropriate averments showing that a conveyance of land from the defendant Baker to the defendant Beneville was made with intent to defraud the plaintiff, and other creditors of Baker, and was, therefore, fraudulent as to them, and claimed that the same should be set aside; that certain judgments mentioned in the complaint might be adjudged to be a lien on the land so conveyed, and that said land might be sold and the proceeds of the sale applied in satisfaction of the judgments.
The defendants answered separately; each denied the allegations of fraud. Mrs. Baker disclaimed any interest in the land, and Beneville distinctly claimed to be the “real and bona fide owner thereof,” by virtue of said conveyance. The case, therefore, seems to be within the sections of the Code cited. In Wood v. Hollister (3 Abb., 14) it was held that an action like this was one brought for the determination of interests in real property, and was, therefore, local, according to section 123 of the Code. (See also, Leland v. Hathorne, 42 N. Y., 547.)
But if the court had power to allow a discontinuance without costs, we think it should not have been exercised. On the trial, judgment had been rendered for the plaintiff with costs ; the General Term reversed the judgment, granted a new trial and awarded costs to abide the event. In whatever way the action might eventuate, therefore, whether by judgment or discontinuance, the pre*311vailing party, under the order of the General Term, would be entitled to costs; and an order permitting a discontinuance without costs, is a substantial modification of the order of the General Term. That, we think, is not within the province of the Special Term.
We think also, that the plaintiff has shown no sufficient reasons why he should he exempted from the ordinary penalty of an unfounded litigation.
The orders appealed from must be reversed, with ten dollars costs and disbursements to each defendant.
Baknakd, P. J., concurred; Dykman, J., not sitting.Order reversed, with costs and disbursements.