p. 544The Mayor, Aldermen and Commonalty of the City of New York, Respondent, v. Sarah Lynch, Defendant, and Nathaniel Jarvis, Jr., Appellant.Headnote
Discontinuance—• a plaintiff need not remain in court in order that adverse defendants mazy settle an issue betioeen them raised by an answerIn an action "brought upon the part of the city of New York to set aside a conveyance made by it to William Lynch, of whom the defendant, Sarah Lynch, was the successor in interest, Nathaniel Jarvis, Jr., was made a defendant as claiming an interest in the premises adverse to Sarah Lynch, who did not appear in the action. Jarvis interposed an answer which he also served on Sarah Lynch, claiming therein an affirmative judgment against her in a matter foreign to the purposes of the action, and in which the city of New York had no interest. On the motion of the corporation counsel he was allowed to discontinue the action.
Held, that the order was proper;
That the city of New York was not bound to remain in court in order to enable the defendant Jarvis and the defendant Sarah Lynch to settle their differences.
Appeal by the defendant, Nathaniel Jarvis, Jr., from two orders of the Supreme Court, made at the New York Special Term, bearing date, respectively, the 23d and 31st days of December, 1895, and entered in the office of the clerk of the county of New York discontinuing the action.
Anderson Price, for the appellant.
William L. Turner and Robert Shaw Barlow, for the respondent.
This action was brought to set aside a certain grant of real estate made by the plaintiff to one William Lynch, of whom the defendant
p. 545Sarah Lynch was the successor in interest. The defendant Jarvis was joined as a party defendant for the reason that he claimed to have an interest in said property adverse to the defendant Lynch. The defendant Lynch has never appeared; hut the defendant Jarvis appeared and served an answer, also serving his answer upon the defendant Lynch, claiming some affirmative judgment against her. The corporation counsel made a motion for leave to discontinue the action, which was granted, and from the orders thereupon entered this appeal is taken.
We can see no reason for interfering with the orders appealed from. The corporation counsel has charge of all the legal business of the plaintiff, and there is no evidence whatever of any dissent on the part of any of the municipal authorities from the action of the corporation counsel. A plaintiff has ordinarily the right to discontinue an action upon the payment of costs, unless by so doing he deprives the defendant of some rights which he has acquired by reason of the bringing of the action. In the case at bar the only claim is that the defendant Jarvis has served an answer upon the defendant Lynch seeking to assert title to the property in question, and that the city of New York is bound to stay in court for the purpose of enabling them to settle their differences in this action, the city of New York having no interest in the controversy, being absolutely indifferent as between the parties, and such controversy having no relation whatever to the subject-matter of the action as set forth in the complaint, the action being brought to set aside a grant of certain premises given by the city of New York. The claim upon the part of the defendant Jarvis, which he seeks to assert in this action, is that as against the defendant Lynch he has the title to the property. This controversy must be settled in some other action than the present.
The orders appealed from should be affirmed, with ten dollars costs and disbursements.
Barrett, Rumsey, Williams and Patterson, JJ., concurred.
Orders affirmed, with ten dollars costs and disbursements.