Merritt v. Arden
New York Supreme Court
Motion for judgment as in case of nonsuit. This cause was tried at the May circuit, in Putnam, in 1826, when the •’ plaintiff was nonsuited. In August, 1826, the defendant obtained an insolvent’s discharge. At the February term, 1827, the nonsuit was set aside, and a new trial granted. Previous to the last circuit, the plaintiff offered to discontinue without costs, which the defendant refused, and now applies for judgment as in case of nonsuit.
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Motion for judgment as in case of nonsuit. This cause was tried at the May circuit, in Putnam, in 1826, when the •’ plaintiff was nonsuited. In August, 1826, the defendant obtained an insolvent’s discharge. At the February term, 1827, the nonsuit was set aside, and a new trial granted. Previous to the last circuit, the plaintiff offered to discontinue without costs, which the defendant refused, and now applies for judgment as in case of nonsuit. The plaintiff insists upon the right to discontinue without costs, on account of the defendant’s discharge, and his utter inability to pay any…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The nature of the action does not affect the rule of proceeding in cases of this kind» When a defendant obtains an insolvent’s discharge, after the commencement of a suit, the plaintiff is allowed to discontinue without costs, on account of the conclusive evidence of the poverty of the defendant afforded by the discharge. As, however, the plaintiff has proceeded in the suit, after the defendant obtained his discharge, he must pay the defendant’s costs of such proceeding. The plaintiff, therefore, has leave to discontinue, on payment of such costs, which, if he…
2Cited by3 opinions
- Butler v. MorrisThe Superior Court of New York City · 1857
- Ludington v. BellThe Superior Court of New York City · 1879
- Park v. MooreCourt for the Trial of Impeachments and Correction of Errors · 1843