Ackroyd v. Newton — 53 N.Y.S. 682

Majority

p. 682

(24 Misc. Rep. 424.)

ACKROYD v. NEWTON et al.

(Supreme Court, Special Term, Albany County.

August, 1898.)

Headnote

1. Costs on Voluntary Discontinuance—Mistake.

After issue joined, a discontinuance without costs will not be allowed because defendants were sued as partners, when the debtor was a corporation.

8. Same—Severing Defenses—Separate Costs.

Where defendants needlessly sever their defenses, and answer by separate attorneys, only one bill of costs will be allowed.

Action by James Ackroyd against John M. Newton and others as co-partners. Heard bn motion by plaintiff to discontinue without costs on the ground that the debtor is a corporation, and not a partnership; such fact appearing subsequent to the joinder of issue.

Denied.

p. 683

Frederick E. Wadhams, for the motion.

Chas. Irving Oliver, opposed.

In common-law as well as in equitable actions the court has power to permit a discontinuance of the action without costs. De Barante v. Deyermand, 41 N. Y. 357 . The almost invariable rule in actions at law is that the party desiring to discontinue must pay the accrued costs. To this rule there are but few exceptions. Although the present case is a hard one for the plaintiff, I do not think that it comes within that class of cases which are exceptions to the rule. But I cannot conceive of any good reason why the defendants should have separately answered by separate attorneys. The papers disclose, beyond any question, the fact that the defendants needlessly severed in their defenses. It is sufficiently onerous to the plaintiff to lose his claim, and to pay one bill of costs. The burden of two bills would be as unjust as it is needless. The case is not one in which separate bills of costs should be allowed.

Let an order be entered permitting the plaintiff to discontinue the action upon payment to the defendant John M. Newton of his taxable costs down to the time of noticing this motion. No costs of this motion allowed. Ordered accordingly.