Majority
p. 436Kelly v. Collins. (City Court of New York, Special Term. October, 1888.)
Headnote
Practice in Civil Cases—Effect of Interpleader—Dismissal.Where, by an order of interpleader, two actions have been merged into one, it is too late to discontinue one of the original actions.
Motion to vacate order.
Roe & Macklin, for order. D. <& R. Doherty, contra.
The effect of the order of interpleader was to merge the two actions into one in respect to subsequent procedure. It was too late to discontinue one of the original actions after it had become effectually merged into the other. In addition to this, the action could not be discontinued by the mere service of a notice. 'A rule for discontinuance should have been entered with the clerk, and the defendant’s costs paid or tendered. Averill v. Patterson, 10 N. Y. 500 . Motion to set aside order of interpleader denied, without costs.
Cases cited
- Averill v. Patterson 10 N. Y. 500 p. 436