delivered tbe following opinion:
This cause comes on to be heard upon a motion to reconsider orders made by a previous judge of this court on November 9th and November 22d, 1912, fixing certain terms for reopening the case. The complainant had allowed time for taking his testimony to lapse, and consequently the defendant was entitled to a decree dismissing the case for want of proof. The court granted leave to the complainant to dismiss the case without prejudice, and, later, time to take testimony, provided the complainant would pay $500 for respondent’s counsel fees.
The ordinary rule is that a complainant has a right to dismiss his bill upon payment of costs. Costs do not include solicitor’s fees. But this rule has just exceptions, and one is that when any other party has acquired rights in the meantime, the complainant is not permitted to dismiss except by consent.
A case discussing the question fully is that of Chicago & A. *169R. Co. v. Union Rolling Mill Co. 109 U. S. 704, 713, 27 L. ed. 1081, 1085, 3 Sup. Ct. Rep. 594, and citations.
In tbe case at bar tbe defendant bad acquired tbe right to have tbe cause dismissed upon tbe merits, and should not be required to change its position without consent; and tbe consent in this instance was on condition of tbe payment of $500 counsel fees.
Tbe imposition of costs is a different thing from tbe imposition of terms, or, rather, costs are but one form of tbe terms which may be imposed by tbe court. Courts not infrequently require that something bé done or conceded by a party as terms, before some penalty or advantage will be waived. See Merrimac Mattress Mfg. Co. v. Schlesinger, 124 Red. 237. It does not seem that there is any reason why counsel fees should not be imposed as terms in a proper case. Going on with the case imposes further employment of attorneys. The granting of such an order was within the discretion of the court, and nothing has been shown on this hearing to indicate that the counsel fees allowed were excessive. On principle the court would not be inclined to disturb this exercise of discretion had at a previous term, and still less so when the order was made by another judge, who had all the facts before him.
The motion therefore is overruled, but 4 the plaintiff is allowed sixty days to take its testimony if it prefers to go on.