Sachs v. Italia Societa Anonima Di Navigazione

CONGER, District Judge.

This is a motion to set aside a notice of discontinuance which plaintiff served upon' defendant. As yet, no answer has been filed, but it is argued that defendant’s previous motion to dismiss the complaint amounted to a general appearance, and that under Rule 41(a) (1) (ii) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, after there has been an appearance by the defendant, a voluntary dismissal can be had only by a stipulation of the parties. In support of the motion, defendant asserts that unless the words “before answer” in subdivision (a)…