Moore v. Moore — 53 N.Y. St. Rep. 301

Majority

p. 301

William Moore, Resp’t, v. Maria Moore, App’lt.^[1]

(Court of Appeals,

Filed June 30, 1893.)

Headnote

Divorce—Discontinuance—Appeal.

In an-action for divorce on the ground of adultery of the wife, in which the marriage was admitted and the answer consisted of denials of the adultery charged, the court allowed the plaintiff to discontinue on payment of taxable costs after the cause had been placed on the calendar. Held, that the granting of the application and the terms to be imposed rested in the discretion of the court, and such discretion was not reviewable in this court.

p. 302

Appeal from order of the supreme court, general term, third department, affirming order of special term allowing a discontinuance of the action on payment of taxable costs. Action for divorce on the ground of adultery on the part of defendant. The answer admitted the marriage, denied the allegations of adultery and made no countercharge. After the cause had been placed on the calendar plaintiff applied for leave to discontinue on paj'ment of costs, which was opposed by defendant, who insisted upon a trial in open court that"her character might be vindicated, and also asked that in case of a discontinuance she be allowed a-counsel fee. The application was granted by the special term. 51 St. Rep., 911 .

R. A. Parmenter, for app'lt; Arthur L. Andrews, for resp’t.

The order of the general term, which affirmed an order of the special term granting the plaintiff’s application to discontinue this action upon payment by him of the costs, is not re viewable in this court. The action was for a divorce upon the ground of adultery, and was on the circuit calendar when the order of discontinuance was made. The court had before it the moving affidavits and the opposing affidavits made by the defendant and her attorney, and it was upon their consideration, as well as of the pleadings, that the order was granted. Under the circumstances developed, it was within the discretion of the court to grant or tó refuse the plaintiff’s application. It does not ‘appear that there was any violation of any right or interests of the defendant. In fact the granting of the order of discontinuance might be regarded as a concession on the part of the plaintiff that he was unable to prove his case. There was no abuse of the discretion which rested in the court with respect to the application, and it was for it to pronounce upon the terms to be imposed upon the plaintiff as a condition of the discontinuance.

The appeal should be dismissed, with costs.

All concur.