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Connors v. Titus

17 N.Y. Sup. Ct. 235 Court N.Y. Gen. Term English

Judges Davts, P. J., and Daniels, J., concurred.

Delivered by Brady, J.:

Contents

Majority

p. 235
ANNE CONNORS, Administratrix, etc., Respondent, v. AMOS N. TITUS, Impleaded, etc., Appellant.

Headnote

Discontinuance of action — on ground that it has heen settled — what must he shown upon application for.
Where a motion is made to discontinue an action, on the ground that one of the defendants has settled and discharged the plaintiff’s claim, the party so applying must furnish such evidence in proof thereof as would he sufficient to sustain a plea of puis damien continuance, or a supplementary answer setting up such settlement.
Appeal from an order denying a motion for a discontinuance of this action on the ground that one of the defendants settled and discharged the plaintiff’s claim. The attorney for the defendant Titus, who made the application, set forth in his affidavit, among other things, “that on or about the eleventh day of January, inst., deponent was informed by the clerk and agent of the defendant, James M. Shaw, and verily believes that the claim alleged in the complaint in this action was compromised and settled by said defendant Shaw; that deponent has been informed and verily believes that the sum of $700 was paid by said Shaw to said plaintiff, or her attorney, in satisfaction of the damages for which this action was brought, and that said sum was paid on or about the 1st day of October, 1876, together with the costs and disbursements of this action.”
G. W. Brewster, for the appellant.
Dcmiel B. Dyddey, for the respondent.

This appeal is not embarrassed by any question arising from the payment by one of several defendants of bis part of the. claim made against all.

The allegation is that one of them paid the plaintiff a sum in satisfaction of the damages for which this action was brought, but the statement is made wholly on information and belief, and is mere hearsay, and therefore insufficient.

p. 236
On an application like this, the party must furnish evidence which would be sufficient to sustain a plea of puis dcurrien continucmce, or supplementary answer setting up the settlement.

The proof submitted would not be admitted for that purpose, and the motion was, therefore, properly denied.

Ordered accordingly, with ten dollars' costs and disbursements of this apjDeal.

Davts, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.