Felix v. Van Slooten

This action is based upon two promissory motes. The complaint contains two causes of action, and demands judgment for $¿¡660, being $660 more than a judgment may be for in this court.

On motion the first cause of action was stricken out of the complaint. From the order entered the appeal is taken..

The cause of action which was stricken from the complaint was for $1,014.87 balance due on a note. The answer admitted such indebtedness.

The second cause of action was upon another note for $1,646.12.

A defense is set out against the last note, and a counterclaim for $3,498, against both notes.

The appellant’s main contention is that a plaintiff cannot discontinue his action where a counterclaim has been interposed.

. This contention is not supported by the decisions, but the contrary seems to have been decided by Grover, J., in 49 N. Y., 78 , in which he says that an amendment of a complaint may be allowed by striking therefrom causes of action therein set out. This is precisely what the order herein appealed from did.

The general term of this court in Cohn v. Anathan, 24 St. Rep., 295 , decided, “ that a plaintiff may at any time discontinue his action upon payment of costs, nor does the fact that defendant may have pleaded a counterclaim preclude the plaintiff from having his application granted.”

As the amendment of the complaint herein extended only to the first cause of action I think that the terms upon which such amendment was granted were within the discretion of the special term justice and should not be questioned by us.

Order appealed from affirmed, with costs.

Van Wyck, J., concurs.