Fowler v. Starr
New York Supreme Court
Motion by plaintiffs for leave to discontinue without costs. The action was for the balance of an account for goods sold by the intestate, who died in April, 1845; and the suit was commenced in February, 1846. On the 17th of that month the defendant’s attorney served a copy of a plea setting up a discharge under the bankrupt act, granted in November, 1843. The acting administrator, who had the sole charge of the business of the estate, swore that he bad never heard of the…
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Motion by plaintiffs for leave to discontinue without costs. The action was for the balance of an account for goods sold by the intestate, who died in April, 1845; and the suit was commenced in February, 1846. On the 17th of that month the defendant’s attorney served a copy of a plea setting up a discharge under the bankrupt act, granted in November, 1843. The acting administrator, who had the sole charge of the business of the estate, swore that he bad never heard of the discharge until the plea was served.
1Opinion of the Court
By the Court, Beardsley, J.
The plaintiffs may discontinue without paying costs to the defendant. They necessarily prosecuted as administrators in the right of their intestate, and there is no reason to believe that the action was brought wantonly, or that it was either commenced or conducted in bad faith. (2 R. S. 615, § 16,17.)
Motion granted.
2Cited by1 opinion
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