Carleton v. . Darcy
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term, denying a motion on the part of plaintiff for leave to discontinue the action on payment of costs. (Reported below, 11 J. & S., 373.) The facts appear sufficiently in the opinion. Plaintiff had a right to discontinue his suit at any time before judgment.
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Appeal from order of the General Term of the Superior Court of the city of New York, affirming an order of Special Term, denying a motion on the part of plaintiff for leave to discontinue the action on payment of costs. (Reported below, 11 J. & S., 373.) The facts appear sufficiently in the opinion. Plaintiff had a right to discontinue his suit at any time before judgment. (1 Abb., 46; 18 Barb., 595; 13 How., 258; 25 id., 500; 7 Abb. [N. S.], 37; 11 Hun, 286; 10 id., 120.) Plaintiff was not entitled as matter of right to discontinue his suit on payment of costs. (Young v. Bush, 36 How. Pr.,…
1Opinion of the CourtFolger, J.
The plaintiff has seen fit to ask the court
below for an order permitting him to discontinue his action, on the payment of costs to the defendants. That court has refused his request, and on appeal from the order he claims that he has the right, of his own head, to discontinue his action on those terms. But there is no valid discontinuance of an action without an order to that end. That order, whether ex parte or on motion, must be an order of the court, and as its order, within its control. It is truc, as a general rule, that a plaintiff may, upon the payment of the costs of the defendant,…
2Cases cited1 opinion
- Cockle v. UnderwoodThe Superior Court of New York City · 1854
3Cited by40 opinions
- Winans v. . WinansNew York Court of Appeals · 1891
- Matter of Petition of ButlerNew York Court of Appeals · 1886
- Kruger v. PersonsAppellate Division of the Supreme Court of the State of New York · 1900
- Cash v. KruschkeWisconsin Supreme Court · 1908
- Grana v. Metropolitan Life InsuranceAppellate Division of the Supreme Court of the State of New York · 1932
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