Kenna v. Atlas Steamship Co. — 19 Abb. N. Cas. 265

Majority

p. 265

KENNA v. ATLAS STEAMSHIP CO.

N. Y. Supreme Court, First District, Chambers;

July, 1887.

Headnote

Discontinuance ex parte.] After a defendant has duly appeared generally in the action, he cannot discontinue ex parte without payment of costs.

Motion by defendant to vacate an ex parte order of discontinuance of the action.

The evidence was conflicting as to whether the notice ■of defendant’s appearance was duly served prior to the granting of the order of discontinuance.

Seth S. Terry (Wheeler & Cortis, attorneys), for the defendant and the motion.

W. Lane O’Neill, for the plaintiff, opposed.

The evidence established to my satisfaction that the defendant had duly appeared when the ex parte order of June 8, 1887, was obtained from Mr. Justice Patterson. After a defendant has appeared, a plaintiff cannot discontinue his suit ex parte, without payment of costs.

The motion to vacate the order is granted, with costs.'