Allis v. Wheeler
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term denying motion, on behalf of plaintiff, for leave to discontinue the action against defendant Wheeler, without costs. The action was upon a promissory note, of which Wheeler was indorser, against makers and indorser. The defendants joined in one answer. Ho separate defence was set up.
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Appeal from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term denying motion, on behalf of plaintiff, for leave to discontinue the action against defendant Wheeler, without costs. The action was upon a promissory note, of which Wheeler was indorser, against makers and indorser. The defendants joined in one answer. Ho separate defence was set up. The order of the Special Term was properly affirmed by the court below. (Code, § 304; 18 How., 108; 20 id., 511; 4 Seld., 29; 5 id., 549; 12 Abb., 209; 2 Sandf., 705; 3 Bos., 632; 7…
1Opinion of the CourtRapallo, J.
Before the amendment of 1851 to section 306 of the Code, the provision contained in that section that “ when there are several defendants not united in interest and making separate defences by separate answers, and the plaintiff fails to recover judgment against all, the court may award costs to such of the defendants as have judgment in their favor, or. any of them,” related only to actions other than .those referred to in sections 304 and 305, and was so con*51strued. (Daniels v. Lyon, 5 Seld., 549.) That case, although decided in this court in 1854, arose under the Code of 1849. But the…
2Cases cited1 opinion
- Zink v. AttenburgNew York Supreme Court · 1859
3Cited by1 opinion
- Hathaway v. . BraymanNew York Court of Appeals · 1870