Tubbs v. Hall

Although the defendant has interposed a counter-claim, the plaintiff has the right to discontinue (Oaksmith v. Sutherland, 4 Abb. Pr., 15; S. C., 1 Hilt., 261; Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pr. N. S., 37; Seaboard & Roanoke R. R. Co. v. Ward, 1 Abb. Pr., 46; S. C., 18 Barb., 595). The question remains, can the court, in a proper case, order the plaintiff to pay defendant an extra allowance under subdivision 2 of section 309 of the Code, in addition to defendant’s taxable costs, as a condition of discontinuance. It rests in the discretion of the court to impose even the payment…