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Cottonwood Creek Copper Co. v. Kuehnert

126 N.Y.S. 904 Court N.Y. App. Div. Decision date 1911-01-13 English

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p. 904
COTTONWOOD CREEK COPPER CO. v. KUEHNERT. SAME v. BARNES.
(Supreme Court, Appellate Division, First Department.
January 13, 1911.)

Headnote

Dismissal and Nonsuit (§ 42[1] )—Discontinuance—Effect.
Where an action has been discontinued, there is no action pending until the discontinuance is vacated, and until that time a motion to open-a default does not lie.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. §§- 75-83; Dec. Dig. § 42.*]
Actions by the Cottonwood Creek Copper Company against Robert Kuehnert and against Hans E. Barnes. On motions to open default.
Denied.
See, also, 136 App. Div. 929 , 120 N. Y. Supp. 1120 .
Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
F. M. Franklin, for the motions.
Henry W. Scott, opposed.

The actions have been discontinued, and until the order of discontinuance is vacated there are no actions pending in which motions can be made.

These motions should therefore be denied, with $10 costs.