p. 509In the Matter of Alma Louise Larner, an Incompetent Person, Appellant. Henry L. Goodwin, as Committee of the Person of Alma Louise Larner, and Louise A. Coddington, Respondents.Headnote
Right to discontinue a pn'oaeeding, instituted ly an incompetent to discharge her committee, after a verdict against her.A person, adjudged to be incompetent because oí an excessive use of alcoholic stimulants, instituted proceedings to have the committee of her person discharged upon the ground that she had recovered her health and was competent to take care of herself. The application was opposed by the committee, and the issues raised in the proceedings were tried before a jury and determined adversely to the incompetent. Thereafter and before a final order had been entered, the incompetent applied for leave to discontinue the proceeding.
Held, that the court properly denied the application.
As a general rule, a party has a right to discontinue an action or proceeding upon such terms as to the court may seem just, when such discontinuance does not impair or injure the rights of the opposing party, but when a party has subjected himself to the jurisdiction of the court and the court has passed upon the issues raised, then it is for the court to say, in the exercise of its discretion, whether or not it will permit a discontinuance.
Appeal by the petitioner, Alma Louise Lamer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1902, denying the petitioner’s motion for leave to discontinue the proceeding.
WilUmn W. MaeFa/rland, for the appellant.
Charles Blandy, for the respondents.
On the 18th of May, 1900, the appellant was, in proceedings instituted for that purpose, adjudged to be incompetent, by reason of an excessive use of alcoholic stimulants, to manage her person and estate, and committees were appointed thereof. In February following she instituted this proceeding to have the committee of her person discharged, upon the ground that she had recovered her health and was competent to take care of herself. The motion was
p. 510opposed by the committee, and the learned justice sitting at Special-Term sent the issues raised to a jury for trial and directed that upon the verdict rendered, either party might apply to the court for a final order in the proceeding. After a trial had been had before a jury, and a verdict rendered which was adverse to the appellant, she applied before a final order had been entered, for leave to discontinue the proceedings. Her application was denied and she has appealed.
As a general rule, a party has a right to discontinue an action or proceeding commenced, upon such terms as to the court may seem just, when such discontinuance does not injure or impair the rights of the opposing party. (Matter of Butler, 101 N. Y. 307 .) But when a party has subjected himself to the jurisdiction of the court, and the court has passed upon the issues raised, then it is for the court to say, in the exercise of its discretion, whether or not it will permit a discontinuance. Here the court exercised its discretion and in doing so we think properly denied the appellant’s application. She did not ask to discontinue the proceeding until after the rendition of the verdict by the jury, and then manifestly only because it was adverse to her. Having invoked the jurisdiction of the court and subjected the committee to the expense of trying the issues raised, she could not insist:, as a matter of right, that tlie proceedings should be discontinued before a final order had been made therein.
The order appealed from, therefore, must be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.