Pennell v. Wilson
The Superior Court of New York City
This action was brought to reform a written contract made between the plaintiff and the defendant, and on such reformation to recover from the defendant the sum of $251.03.' An answer to the complaint was put in. The issue thus joined was brought on for trial at a special term held for the hearing of equity causes. On such trial judgment was rendered for the plaintiff.
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This action was brought to reform a written contract made between the plaintiff and the defendant, and on such reformation to recover from the defendant the sum of $251.03.' An answer to the complaint was put in. The issue thus joined was brought on for trial at a special term held for the hearing of equity causes. On such trial judgment was rendered for the plaintiff. From this judgment the defendant appealed to the general term, and the judgment was reversed and a new trial ordered. ’ • The order of reversal contained no provision respecting costs. .After the reversal the plaintiff, on an…
1Opinion of the Court
By the Court, Jones, J.
The question on this appeal is whether upon the principles of law applicable to the subject, the order was correct or not.
In the determination of the question it will be convenient, first, to ascertain what the rules were before the Code.
At common law a plaintiff could not discontinue without payment of costs, except upon leave granted by the court upon special motion. (Fifield v. Brown, 2 Cowen, 503.)
*663The courts of common law have held that they will permit a discontinuance, without costs for the following causes: A discharge of the defendant in bankruptcy or in…
2Cases cited14 opinions
- Wellington v. ClaasonNew York Supreme Court · 1859
- Van Buren v. FortNew York Supreme Court · 1830
- Gallagher v. EganThe Superior Court of New York City · 1850
- Lackey v. M'DonaldNew York Supreme Court · 1803
- People ex rel. Dey v. Superior CourtNew York Supreme Court · 1838
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