Majority
p. 308HOPE a. ACKER. New York Superior Court; Special Term, October, 1858.
Headnote
Discontinuance.—Motion.A discontinuance terminates an action to all purposes, and operates to dissolve an injunction;
In an action which has been discontinued and the costs paid to the defendant, the court will not entertain his motion to dissolve an injunction which had been obtained before the discontinuance.
If such facts give the defendant a right to damages upon the undertaking, he must establish it by action thereon.
■Motion to dissolve an injunction.
On the 26th of June, 1858, the plaintiff served on the defendants’ attorneys a notice stating “ that the plaintiff discontinues the above entitled action against the defendants therein, and hereby offers to pay them, the said defendants, their taxable costs which they have incurred in this action up to this date.” The notice was dated on the day it was served. The plaintiff had obtained an injunction, which was in force when this notice was served. On the 1st of July, 1858, the plaintiff paid to defendants’ attorneys the defendants’ costs of the action, which had been adjusted by consent at $20.85, and took a receipt therefor. On the 21st of September, 1858, the defendants’ attorneys served a notice of this motion to be made on the 27th, for an order “ that this action be discontinued, and that the injunction order heretofore made in this action, on or about the 12th of June last, be vacated.” The notice stated that such motion would be made on the “ notice of discontinuance,” and on the “ injunction order and the pleadings and proceedings in this action.”
N. Smales, for the motion.
L. Chapman,, jr. opposed.
—The notice of discontinuance served, and payment of defendants’ costs of the action, put an end to the action, and it thenceforth ceased to be an existing or pending suit for
p. 309
any practical purpose. I shall not examine the papers on which the notice of this motion states it will be made, in order to determine the question whether the plaintiff, so far as it can be determined upon such papers alone, was entitled to the injunction. The order of discontinuance, to be entered on this motion, will not, therefore, contain any clause which may be construed as imputing that the court has decided a question which it has not examined: the action is terminated, and with the discontinuance of the action the injunction ceased to operate. If these facts give the defendants a right of action upon the undertaking, they have only to bring a suit and recover their damages: the court will not hear a motion in an action which has been discontinued., and the costs of which have been paid to and received by the party entitled to them, for the mere purpose of deciding whether the plaintiff had a right to the injunction on the pleadings and proceedings which had been had in the action. An order will be entered declaring the action discontinued, without further costs thereof to either party as against the other.