Woerman v. Baas

If this action had proceeded to judgment, Baas would not have been entitled to costs as a matter of course. The action was one in partition, and Baas was the executor of the dead owner of the property. By this will Baas had an estate in the land for 10 years, with the right to purchase at a sum named,—$6,000. The 10 years had expired, and Baas refused to buy at that price. The heirs commenced partition, and Baas was made a party defendant at his own request. The heirs sold the land, and procured an order of discontinuance, upon payment of $10 to Baas. There is no legal way to increase this allowance, under the circumstances of this case. The order should therefore be affirmed, with costs and disbursements.

(dissenting.) Except the appellant, who has sued in his representative capacity, all the parties to the action are aliens. The property which the action was brought to foreclose has been sold by the heirs at law. The questions which the counsel for the executor was required to consider were many and difficult, and it is evident that they required careful study. Except the portion of the estate herein involved, all has been settled, paid out, and the executor’s accounts closed. If the suit is discontinued without providing for the expenses for counsel, etc., to which the executor has been subjected, they will be thrown upon him personally, which would be unjust. Under all the circumstances, we think the discontinuance and discharge of the lis pendens should be conditioned upon payment of $250 to the attorney of the executor, and that the order made at special term should be modified to *470that extent, and the appellant should recover costs and disbursements of this appeal. If these conditions are not complied with, the cause should proceed to judgment.