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Weidler v. Weidler

73 N.Y.S. 200 Court N.Y. App. Term English

Delivered by GILDERSLEEVE, J.

Contents

Majority

p. 200
(36 Misc. Rep. 219.)
WEIDLER v. WEIDLER.
(Supreme Court, Appellate Term.
October, 1901.)

Headnote

Discontinuance of Action.
Plaintiff in municipal court can discontinue an action at any time before final submission on payment of costs.
Appeal from municipal court, borough of Manhattan.
Action by Plerman Weidler against John Weidler. Judgment for defendant, and plaintiff appeals.
Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and McADAM, JJ.
Johnston & Johnston, for appellant.
W. Wills, for respondent.

The action is for goods sold and delivered. At the trial, before the submission of the case to the jury, the plaintiff moved to discontinue the action, with costs. The justice, however, refused to permit such a discontinuance, and ordered the case to proceed. The jury found in favor of defendant, whereupon the justice, on such verdict, gave judgment absolute for defendant, dismissing the complaint, with costs. The plaintiff appeals.

It is well settled that an action in the municipal court may be voluntarily discontinued by the plaintiff at any time before the actian is finally submitted, and that a refusal of the justice to permit such a discontinuance is a sufficient ground for a reversal of a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728 , 56 N. Y. Supp. 1044 . Under the provisions of the statute (Consol. Act; Laws 1882, c. 410, § 1382, subd. 1) the justice should

p. 201
have allowed the plaintiff to discontinue on payment of costs, and without prejudice to a new action.

Judgment reversed, and new trial ordered, with costs to abide event. All concur.

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