This action was commenced by the service of a summons on the defendant, returnable March 30, 1903. The amount sued for was $400. . The record shows that, upon the case being called, the defendant made a motion for costs for nonappearance on the part of the plaintiff. The plaintiff then appeared, and handed to the court the following notice:
“A. Blum Jrs. Sons, Plaintiffs, against Bartholomew O’Connor, Defendant.
“Plaintiff hereby voluntarily discontinues by Peck & McCann his attorneys.
“Peck & McCann, Plaintiff’s Attys.
“52 Broadway, New York.”
Defendant thereupon asked for costs on such discontinuance. The court permitted the plaintiff to voluntarily discontinue the case, holding that there is no provision of law under title 10 of the Municipal Court act fixing costs in cases of this character in favor of defendant. The defendant excepted to such ruling of the court, and brings this appeal.
The case of Rothoser v. Cosel (decided at the April term of this court) 85 N. Y. Supp. -, involved a similar question, and Mr. Justice Stake wrote an exhaustive opinion, which this court practically adopted by affirming the judgment awarding costs to the defendant in that case. The contention of the appellants in the case of Rothoser v. Cosel was, and in the case at bar is, based upon the principle set forth in the cases of Barry v. Winkle, 36 Misc. Rep. 171, 73
“In all actions brought In this court, there shall be allowed to the prevailing party if he shall have appeared by an attorney at law, who flies a verified pleading or a written notice of appearance, the following sum's of costs.”
Subdivisions 2, 3, and 4 then provide for the amount of costs, that shall be awarded to the plaintiff. Subdivisions 5, 6, 7, and 8 provide for the amount of costs that shall be awarded the defendant. Subdivision 5 applies when there has been a trial. Subdivision 6 provides that, “where the defendant recovers a judgment on nonappearance of the plaintiff costs shall be awarded to the defendant at the rates prescribed in subdivision 3 based upon the amount of plaintiff’s demand in the summons.” Subdivisions 7 and 8 apply, to counterclaim put in by defendant. It will be seen that in the foregoing section no provision has been made for the amount of costs to be awarded to the defendant where the plaintiff voluntarily discontinues his action. Section 248 of the Municipal Court act provides in part as follows:
“Sec. 248—Non-suit—When Authorized—Judgment that the action be dismissed with costs without prejudice to a new action, shall be rendered in the following cases: (1) Where the plaintiff voluntarily discontinues the action before it is finally submitted.”
The rule is enunciated in Barry v. Winkle, Levene v. Hahner, and McKuskie v. Hendrickson, supra, that a statutory enactment is necessary to justify the awarding of costs. The section last quoted expressly awards costs where, as in the case at bar, the plaintiff voluntarily discontinues his action; and there cannot be said, as urged by the respondent, to be “casus omissus” when the act specifically directs, as it does, that costs “shall be” awarded. In McKuskie v. Hendrickson, supra, the court said “costs are regulated by statute, and, unless the plaintiff can point to some statute giving him costs in a case like this, he is not entitled to any”; and similar remarks were made in the cases of Levene v. Hahner and Barry v. Winkle, supra. In all .of the cases cited by the appellant there was no statutory provision of any kind permitting or allowing costs and no provision upon which the right to allow costs could be based. The most that can be said is that the language of the Municipal Court act as to fixing the particular sum to be awarded a defendant in case of a voluntary discontinuance of the action by the plaintiff is obscure. That being the case, the court has undoubted authority to interpret doubtful or obscure language in a statute so as to give effect to the presumed intent of the Legislature, and to carry out what seems to be the general policy of the act. McKuskie v. Hendrickson,' supra. “One of the rules of interpretation most frequently referred to is to the effect that
It would be most unreasonable to assume that the Legislature intended to permit a plaintiff to come into court, and try his case up to the very point of submission, if he so chose, and then, after having caused the defendant great expense in witnesses’ fees, loss of time, attorneys’ services, etc., voluntarily discontinue without being subject to any costs. As Judge Stake said in his opinion in Rothoser v. Cosel: “The contention of the plaintiff’s attorney, if correct, would lead to a very reprehensible practice in this court.” The only difficulty to be met with in the proper application of section 248 of the Municipal Court act, supra, is in ascertaining the amount of costs to be charged against the plaintiff when he voluntarily discontinues his action. Applying the rule invoked by the plaintiff’s attorney, we should have to ignore entirely any reference to costs embodied in section 248, supra, declaring that, in case the plaintiff voluntarily discontinues his action, “judgment that the action be dismissed, with costs, shall be rendered.” That, as we have seen, is not the true rule to be observed in determining the question in this case. Section 248, supra, was taken from section 1382 of the consolidation act (Laws 1882, p. 353, c. 410), and is the same as that section as far as it relates to this subject. Commissioners’ Notes, Collins’ Municipal Court Practice, 175. Section 1420 of the Consolidation Act (Laws 1882, p. 360, c. 410) was the section by which the amount of costs on discontinuance was determined, prior to the Municipal Court act, and provided that, where the plaintiff’s demand is $50 or more, and judgment is rendered in defendant’s favor without a trial upon the appearance of such defendant, $7; when plaintiff’s demand is $50 or more, and judgment is rendered in defendant’s favor after a trial, $10. Section 332 of the Municipal Court act is now but “based upon the general principle of costs in the consolidation act, and provisions of the Code, relating to Justice’s Courts, with a graduated scale.” Commissioners’ Notes, Collins’ Municipal Court Practice, 228. Section 30x3 of the Code, referring to justices’ courts, is, in substance, the same as section 248 of the Municipal Court act. We have referred' to section 332 before. In subdivision 1 thereof costs are to be awarded, in the discretion of the court, in any instance where the sum involved is not more than $50, in the sum of $5. In all other subdivisions the costs depending upon the amount are graduated and regulated on the theory of whether the determination precedes or follows the trial, and the general principle prevailing and fixing the costs under these statutes is to fix one sum preceding a trial and another sum after a trial, depending in all cases upon the amount involved. In subdivisions 3 and 6 of section 332 aforesaid the costs on “nonappearance” are fixed and dependent upon the amount. A voluntary discontinuance is
Judgment modified, by allowing the defendant the sum of $15 costs and disbursements in the court below, and, as modified, affirmed, with costs.
GILDERSLEEVE, J., concurs.