Cockle v. Underwood
The Superior Court of New York City
Motion, for leave to discontinue. The answer to the complaint in this action denied the indebtedness alleged in the complaint, and also set up a counterclaim. It was served June 10,1854. The plaintiff examined both of the defendants as witnesses, and then, on the 13th September following, no reply having been meanwhile put in, he served written notice of discontinuance of the action, tendering defendants’ costs, which they refused to accept.
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Motion, for leave to discontinue. The answer to the complaint in this action denied the indebtedness alleged in the complaint, and also set up a counterclaim. It was served June 10,1854. The plaintiff examined both of the defendants as witnesses, and then, on the 13th September following, no reply having been meanwhile put in, he served written notice of discontinuance of the action, tendering defendants’ costs, which they refused to accept. He forthwith served an order to show cause why the action should not be discontinued on payment of defendants’ costs.
1Opinion of the CourtBosworth, J.
This motion is made on the theory, that the plaintiff is entitled, on paying defendants’ costs of the action, to such an order as he moves for, as a matter of course. Under the old system, a plaintiff could enter a rule, in the book of common rules, discontinuing the action on payment of costs. Such a rule, in an action at law, could be entered at any time before trial, without an application to the Court.— Graham’s Pr., 663-4.
In the Court of Chancery, the complainant might move to dismiss his own bill, with costs, as a matter of course, at any time before the decree. This is stated in the…
2Cited by11 opinions
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- Electrical Accumulator Co. v. Brush Electric Co.U.S. Circuit Court for the District of Northern Ohio · 1890
- Merchants' Bank v. SchulenbergMichigan Supreme Court · 1884
- Young v. BushNew York Supreme Court · 1868
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