Oaksmith v. Sutherland — 1 Hilt. 265

Majority

p. 265

Sidney Oaksmith and Bishop R. Keepler v. James Sutherland.

Headnote

The plaintiff has a right to discontinue, on payment of costs, at any time before the time to reply has expired, notwithstanding the interposition of a counter-claim in the defendant’s answer.

Appeal by plaintiffs from an order made at special term, allowing the plaintiffs to discontinue. The facts appear in the opinion of the court.

B. F. Andrews, for the appellants.

B, Skaats, for the respondent.

Before the time to reply had expired, the plaintiffs tendered the costs which accrue on a discontinuance before issue joined, and gave notice of discontinuance at the same time. Subsequently, and before the period to reply had elapsed, the plaintiffs gave notice of motion for leave to discontinue this action. The reasoning in Bockle v. Underwood (1 Abbott, 1) does not apply, therefore, to this case, the counter-claim not having been admitted by the plaintiffs. The notice of discontinuance and the tender of costs was all that the plaintiffs were required to do, if the right to discontinue existed. I had doubts whether, when a counter-claim was set up, the plaintiffs could discontinue without the defendant’s consent, even within the twenty days allowed to reply, notwithstanding the case of Seaboard and Roanoake Railroad Co. v. Ward (1 Abbott, 46), but, on examination of the subject, I am convinced that the plaintiffs have the right absolutely. In this case I cannot understand how the defendant’s rights can be prejudiced, inasmuch as the claim, if assigned, will be subject to the equities existing between assignor and debtor, and the debtor may be examined in his own behalf, if the assignor should bo a -witness for the assignee.

Order appealed from affirmed.