Wise Shoe Co. v. Fischer

When this case appeared upon the equity calendar for trial plaintiff moved to discontinue. Defendant raised the question of costs and the right to an assessment of its damages under section 894 of the Civil Practice Act. The court took proof under that section when the point was raised by plaintiff that defendant, under the circumstances, was not entitled to damages. The plaintiff obtaired an injunction, which was never vacated. Ordinarily, however, where thereafter a plaintiff discontinues an *515action without the consent of the defendant, that will be deemed an adjudication that plaintiff was…