Majority
p. 1110WESSELMAN v. STUART. (City Court of New York, General Term. December 27, 1899.) Argued before FITZSIMONS, C. J., and O’DWYER and SCHUCHMAN, JJ.
Headnote
Action on Notes—Consideration.In an action on notes, plaintiff pleaded, as a consideration, a promised discontinuance of an action against defendant, and proved an actual settlement of the action by means of the notes. Eeld sufficient to warrant recovery, as the settlement practically involved a discontinuance, the , formal order therefor not affecting the rights of the parties thereto.
‘Appeal from trial term.
Action by Henry B. Wesselman against William Stuart. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed.
L. A. Gould, for appellant..
Heyman Levy, for respondent.
The defendant testified that “the plaintiff said he would discontinue the action, and take the note in settlement of the suit. It was agreed that this case was settled by those two notes.” It thus appears that the case was settled, and either party might enter a formal order of discontinuance. Actual settlement of the cause involves practically a discontinuance. An order of discontinuance is a mere incidental matter, which neither enlarges nor
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diminishes the rights of either party, when the case has been actually settled. Comparing the defendant’s plea with his evidence, he pleads a promised discontinuance as a consideration for the giving of the notes, and proves an actual settlement by means of the notes, as agreed between plaintiff and himself. Plaintiff was therefore entitled to recover herein, and it follows that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.