Cooke v. Beach
New York Supreme Court
Appeal from an order of Justice Gould, made at special term in November, 1860, denying defendants’ motion to get aside and vacate tlie plaintiff's order of discontinuance of April 24, 1860, &c.
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Appeal from an order of Justice Gould, made at special term in November, 1860, denying defendants’ motion to get aside and vacate tlie plaintiff's order of discontinuance of April 24, 1860, &c. In November, 1860, the defendants moved, at special term, to vacate an order of discontinuance entered ex parte by the plaintiff in this action, and to restore the said action to its condition before the entry of said order, and to stay proceedings in a second action between the same parties, alleged to be for the same cause of action. A former action had been commenced (in 1853) against the…
1Opinion of the Court
By the court, Hogeboom, Justice.
I think the order of the special term should be affirmed.
1. The general rule is, that a plaintiff has a right to discontinue his action as a matter of course, oh the payment of costs. (Bedell agt. Powell, 13 Barb., 183, 185, 186.) And this rule applies as well to cases in equity as to actions at law. (1 Barb. Ch. Pr., 225,) There may be and there are circumstances controlling this right—as where, from the state of the pleadings or the proceedings in the cause, the adverse party has acquired some absolute rights which a discontinuance would destroy or impair.…
2Cases cited3 opinions
- Cummins v. BennettNew York Court of Chancery · 1840
- Seaboard & Roanoake R. R. Co. v. WardNew York Supreme Court · 1854
- Bedell v. PowellNew York Supreme Court · 1852
3Cited by3 opinions
- Schaetzel v. City of HuronSouth Dakota Supreme Court · 1894
- Angier v. HagerAppellate Division of the Supreme Court of the State of New York · 1899
- Hotaling v. SchermerhornNew York Supreme Court · 1899