Kruger v. Persons
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Edward H. Kruger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk, of the county of Erie on the 23d day- of J Une, 1899, upon the dismissal of the complaint upon the merits by direction of the court at the Erie Trial Term, and also from an order, entered in said clerk’s office on the l-3th day of May, 1899, denying -the plaintiff’s motion to discontinue the action. Í
1Opinion of the Court
Adams, P.' J.:
An application for leave to discontinue an action is addressed to-the legal, and not to the arbitrary, discretion of the court; and, generally speaking, a plaintiff upon a tender of costs is entitled to an order of discontinuance as a matter of right. (Matter of Petition of Butler, 101 N. Y. 307; Winans v. Winans, 124 id. 140:)
This rule, liowevdr, is not without its exceptions, and in cases where the court can see that it would be unjust or highly prejudicial to the interests of the defendant, it may, through the control which it exercises .over its own order, refuse to allow a…
2Cases cited6 opinions
- Matter of Petition of ButlerNew York Court of Appeals · 1886
- Carleton v. . DarcyNew York Court of Appeals · 1878
- Martin v. CookNew York Supreme Court · 1891
- People v. . American Loan Trust Co.New York Court of Appeals · 1896
- Van Alen v. SchermerhornNew York Supreme Court · 1856
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3Cited by15 opinions
- Campanella v. CampanellaCalifornia Supreme Court · 1928
- Ex Parte HartwellSupreme Court of Alabama · 1939
- Jermyn v. SearingAppellate Division of the Supreme Court of the State of New York · 1910
- Everts v. BlaschkoCalifornia Court of Appeal · 1936
- Neiderjohn v. ThompsonWyoming Supreme Court · 1928
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