Wohltman v. Goff — 4 N.Y.S. 210

Majority

p. 210

Wohltman v. Goff et al.

(Supreme Court, Special Term, New York County.

July 3,1888.)

Headnote

Costs—On Discontinuance—“No Personal Claim”—Notice.

Where notice of “no personal claim” was not served with a summons, as provided for in Code Civil Proo. N. Y. § 433, the court cannot allow plaintiff to discontinue without costs, whether or not a demurrer has been served on plaintiff.

Action by one Wohltman against one Goff and Levi M. Bates, and the Electric Manufacturing Company and others. Plaintiff inadvertently allowed the time to amend to expire, believing that an extension had been obtained, and moves to be allowed to discontinue as to the last two defendants, and to serve an amended complaint on the other defendants. The amended complaint set forth a cause of action for damages for breach of contract to employ plaintiff.

Clark Bell, for plaintiff. John R. Abney, for Electric Manufacturing Company. William 9. Bates, for Levi M. Bates.

As notice of “no personal claim” was not served with the summons, as provided for in section 423 of the Code, the court has no power to permit plaintiff to discontinue as to the American Electric Manufacturing Company without the payment of costs. The defendant’s counsel swears that a demurrer was served on behalf of that company, although plaintiff’s counsel states in his brief that no such demurrer was served. Whatever the fact may be about the demurrer, as the notice authorized by said section 423 did not accompany the summons, said company is entitled to some costs upon the •discontinuance of the action as to it. Of course, the plaintiff is not entitled to discontinue as to Mr. Bates, except on payment of costs. The amendment of the complaint as to the other defendants should be allowed, upon the usual terms, which are the payment of the taxable costs and disbursements of the •action up to the present time, and $10 costs of this motion. An order may be entered, allowing plaintiff to discontinue as to the American Electric Manufacturing Company, on payment of costs, to be taxed by the clerk, without costs of this motion; also to discontinue as to Mr. Bates, on payment of costs to be taxed by the clerk, with $10 costs of this motion; also to serve an amended or supplemental complaint on the other defendants, on payment of one bill of costs and disbursements of the actions to the present time, to be taxed by the clerk, and $10 costs of this motion.