Winans v. Winans — 54 N.Y. Super. Ct. 541

Majority

p. 541

ALICE WINANS, Appellant, v. ROSS R. WINANS, Respondent.

Headnote

Discontinuance—Within discretion of court—Power of court to impose terms.

Before Sedgwick, Ch. J., Fkeedman and O’Gokman, JJ.

Decided May 2, 1887.

Appeal from order denying plaintiff’s motion for leave to discontinue the action.

Also appeal from judgment in favor of the defendant entered upon the report of a referee.

The following opinion was delivered by Tettax, J., at special term on motion for discontinuance :—

“The court of appeals said in Carleton v. Darcy that the court to which a motion to discontinue an action is addressed has a discretion whether or not to refuse it ( 75 N. Y. 377 ), and in Matter Waverly Water Works Co. (85 Ib. 481) it said, ‘ the court in which an action is pending may impose terms beyond taxable costs as a condition of the discontinuance of the action. It may require the plaintiff to stipulate that he will not sue again for the same cause of action. The right to impose conditions grows out of and is included in the right to refuse the discontinuance altogether.’ «These cases establish the right in the court to discontinue an action on terms, or without terms, or to refuse to discontinue it at all. They show that the plaintiff has not the absolute right at all times and under all circumstances to discontinue the action. The plaintiff in this action waived her right to a trial by jury, consented to a reference, and testimony has been taken by the referee. For some reason, the plaintiff became dissatisfied with the reference, and made a motion to set aside the con

p. 542

sent to refer, and the order entered thereon. This motion was denied. It was claimed by the counsel for the defendant, and not denied by the counsel for the plaintiff, on the argument of the motion to discontinue, that the plaintiff’s object in making such a motion was to secure by other means than an appeal a reversal of the order denying the motion to set aside the consent to refer. This she will not be allowed to do. There is another reason why the plaintiff will not be allowed to discontinue the action. She claims that she is the defendant’s wife. This claim the defendant denies. The defendant is entitled to have this claim speedily determined.”

Luther Lt. Marsh, for appellant.

James C. Garter, for respondent.

“.....The judgment should be affirmed, with costs, upon the opinion of the referee.

“ The motion of the plaintiff for leave to discontinue the action during the progress of the trial was properly denied under the exceptional circumstances of this case, and the order of denial should be affirmed with ten dollars costs upon the opinion of the learned judge at special term.”