Bishop v. Bishop
The Superior Court of New York City
This was a motion for a stay of proceedings in this action until a prior action, between the same parties, for the same cause of action, in another court, should be ended. In September, 1866, the plaintiff commenced an action against the defendant in the Supreme Court, by J. W. Billings, Esq. as her attorney. In that action, as in this, B. W. Townsend appeared as attorney for the defendant.
Read the full summary
This was a motion for a stay of proceedings in this action until a prior action, between the same parties, for the same cause of action, in another court, should be ended. In September, 1866, the plaintiff commenced an action against the defendant in the Supreme Court, by J. W. Billings, Esq. as her attorney. In that action, as in this, B. W. Townsend appeared as attorney for the defendant. A motion was made in that suit for alimony and counsel fees, which was denied with costs, to the defendant therein. Subsequent to the decision of that motion, differences arose between the plaintiff and…
1Opinion of the CourtJones, J.
It is clear that the Supreme Court action is not discontinued, but is still pending. An action cannot be discontinued by a mere notice, but an order of discontinuance must be entered. (Averill v. Patterson, 10 N. Y. Rep. 500.) It is true that the case just cited was ah action ■ at law, while this is one in equity. But the decision in that case proceeded on the ground that before the Code, an action at law could not be discontinued without entering a rule for discontinuance, and that the former practice still obtained, under the Code. Prior to' the Code, a bill in equity could not have been…
2Cases cited3 opinions
- Cummins v. BennettNew York Court of Chancery · 1840
- Averill v. . PattersonNew York Court of Appeals · 1853
- Burrows v. Miller & MillerNew York Supreme Court · 1850
3Cited by2 opinions
- Capo v. BlanchardLouisiana Court of Appeal · 1924
- Hawford v. AdlerSupreme Court of Louisiana · 1857