By the Court, Nelson, Ch. J. The defendant is only entitled to such costs as had accrued at the time notice of discontinuance was received. If not paid on taxation, he may proceed in the cause the same as if no rule to discontinue were ever entered; (McKenster v. Van Zandt, 1 Wend. 13; Grah. Prac. 604, 2d ed.;) for in such case the rule may be treated as a nullity. (Id. ibid. Leonard v. Slaughter, 10 John. R. 367; Robinson v. Taylor, 12 Wend. 191.) Motion granted.