White v. Smith
Court for the Trial of Impeachments and Correction of Errors
Error to the recorder’s court of the city of Buffalo. The action was assumpsit by Smith and others against White and others, and was commenced by capias on the 2d of April, 1841. The defendants pleaded in abatement another action pending foi the same cause, brought by the same plaintiffs against the same defendants in the same court.
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Error to the recorder’s court of the city of Buffalo. The action was assumpsit by Smith and others against White and others, and was commenced by capias on the 2d of April, 1841. The defendants pleaded in abatement another action pending foi the same cause, brought by the same plaintiffs against the same defendants in the same court. Replication, taking issue on the pie a. < On the trial, it appeared that another action for the same cause was commenced against the defendants by the plaintiffs in the recorder’s court, by the filing of a declaration and service of copies upon two of the…
1Opinion of the Court
By the Court,
Bronson, J.
Although one of the defendants lived put of the jurisdiction of the recorder’s court, and was not served with the declaration in the first suit, that action was not a mere nullity, and I do not see how we can avoid reversing this judgment. It is settled that a rule to discontinue does not put an end to the suit until the costs are paid. (McKenster v. Van Zandt, 1 Wend. 13; James v. Delavan, 7 id. 511.) And this is so, although the defendant has only employed an attorney, and no notice of the retainer has been given at the time the rule to discontinue is entered, which…
2Cases cited2 opinions
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
- Robinson v. TaylorNew York Supreme Court · 1834