Kilmer v. Evening Herald Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Jonas M. Kilmer, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 25th day of January, 1902, requiring and directing as a condition for the discontinuance of the action the payment to the defendant of an additional allowance of $225 and a stipulation not to begin another action for the same alleged cause.
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Appeal by the plaintiff, Jonas M. Kilmer, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 25th day of January, 1902, requiring and directing as a condition for the discontinuance of the action the payment to the defendant of an additional allowance of $225 and a stipulation not to begin another action for the same alleged cause. The complaint charges the publication by defendant of libelous matter and seeks to recover .$25,000 as damages. The answer denies that the publication was…
1Opinion of the Court
Kellogg, J.:
In Matter of Petition of Butler (101 N. Y. 307) it was held : “ Ordinarily a suitor has a right to discontinue any action or proceeding commenced by him and his reasons for so doing are of no concern to the court. A party should no more, be compelled 'to continue a litigation than to commence one except where substantial rights of other parties have accrued and injustice will be done to them by permitting the discontinuance. In such a case, through the. control which the court exercises over the entry of its order, there is discretion to refuse; but where there are no such .facts…
2Cases cited2 opinions
- Winans v. . WinansNew York Court of Appeals · 1891
- Matter of Petition of ButlerNew York Court of Appeals · 1886
3Cited by6 opinions
- Jermyn v. SearingAppellate Division of the Supreme Court of the State of New York · 1910
- Schlegel v. Roman Catholic Church of Most Holy TrinityAppellate Division of the Supreme Court of the State of New York · 1908
- Cohen v. Texas Co.District Court, E.D. New York · 1927
- Chaffee v. RahrNew York Supreme Court · 1943
- Valentine v. ValentineAppellate Division of the Supreme Court of the State of New York · 1909
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