The Chancellor :—The English practice in cases of this kind appears to be, to require the complainant to bring his cause to a hearing, to get rid of the costs already accrued. (Anonymous, 1 Ves. jun. 140.)
The "practice of the Supreme Court of this state is much more rational, and I am inclined to follow it in this court.
Page 83
The practice there is, to allow the executor or administrator to discontinue without costs, where he has brought a wrong action by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered.[1] *(Purdy v. Purdy, 5 Cowen’s Rep. 14. Phœnix v. Hill, 3 John. Rep. 247. Morse v. McCoy, 4 Cowen’s Rep. 551.)
The complainant has brought himself within the principle of the decisions of the Supreme Court, and must be permitted to dismiss his bill without costs.
Motion granted.
[1].
Fowler v. Starr, 3 Denio, 164; How, admin’x v. Taylor, 1 Wen. 34.