Gwathney v. Cheatham

Headnote

Discontinuance, of action — when not allowed against the ohjecMon of a defendant who has interposed a counter-claim.

Appeal from an order made at a Special Term, allowing a discontinuance of the Action without costs.

-The court, at General Term, said: “ The defendants in this action, by their answer, set up a valid counter-claim, on which, on proof of the allegations of the auswer, they would be entitled to recover against the plaintiffs. Upon that counter-claim, issue has been properly joined. It was insisted in the court below, and is also insisted here, that the defendants had the right to proceed with the action, for the purpose of trying the issue joined upon that counterclaim, independently of the question whether the plaintiff chose to maintain his cause of action or not. This proposition seems to us, in this case, to' be" a sound one, and to be supported by authority. {Livermore v. Bainbridge, 43 How. Pr., 273 ; F’acific Mail v. Puling, 7 Abb. New Cas., 37 ; Wilder v. Boynton, 63 Barb., 547 .) The only ground alleged by the plaintiff for discontinuance, is the insolvency of the defendants. This insolvency has not been established in the usual form, by a discharge in bankruptcy, or under the

insolvent laws of the State. It is merely alleged that the defendants have become unable to pay a judgment in favor of the plaintiff, if recovered, and for that reason the plaintiff asks to be allowed to discontinue without' costs. Under the circumstances of the case, we think the request should not have been allowed, inasmuch as the defendants still insist upon their counter-claim, and the right to proceed and recover it in this action. Without, therefore, determining to what extent the attorney’s lien, under section 66 of the Code, should interfere to prevent the settlement of this action, we think, upon the established rule governing cases of this kind, the order was improvident, and ought not to have been made.”