Cohn v. Anathan — 24 N.Y. St. Rep. 295

Majority

p. 295

William Cohn, App’lt, v. Moses Anathan et al., Resp’ts.

(City Court of New York,

General Term,,

Filed February 26, 1889).

Headnote

Discontinuance—When leave to discontinue granted—Code Civ. Pro., § 412, AS AMENDED.

A plaintiff may, at any time, discontinue his action on paying the defendants’ taxable costs to the date of discontinuance, nor does the fact that the defendant may have pleaded a counter-claim preclude the plaintiff from having his application granted.

Appeal from order denying motion made by the plaintiff for leave to discontinue action on payment of costs.

David Tim, for app’lt; Horwitz & Hirschfield, for resp’ts.

A party should no more be compelled to continue a litigation, than to commence one, except where the substantial rights of other parties have accrued, or injustice would be done by permitting a discontinuance, and we have failed to discover any substantial reason why the plaintiff’s motion to discontinue on payment of the defendant’s costs, should not .have been granted. It seems to have been denied upon the ground that the defendant pleaded a counter-claim, but there is nothing in thi's circumstance which precluded the plaintiff from having his application granted.

There are reported cases holding that a discontinuance should not be allowed where a counter-claim was interposed, but these were owing to peculiar circumstances. Some held that the discontinuance should not be allowed where the counter-claim was admitted by the plaintiff, or where the application for leave to discontinue was made after the time to reply had expired, or in cases where the statute of limitations would run against the counter-claim, in case the discontinuance was allowed, and in order to prevent this result, it was deemed inequitable to allow a discontinuance, but the objection, last suggested, has been obviated by an amendment to section 412 of the Code of Civil Procedure,

p. 296

which saves such counter-claim, from the operation of the statute. So that it may now be laid down as a rule applicable to all cases, that the plaintiff may, at any time, discontinue his action, on paying the defendant’s taxable costs to the date of discontinuance.

See cases cited in 2 Rumsey’s Pr., 155; Matter of Butler, 101 N. Y., 307 . It follows that the order appealed from should be reversed, with costs, and the motion for leave to discontinue, on payment of costs, granted.