Young v. Bush
New York Supreme Court
This is an action in equity for the foreclosure of a mortgage. The defendant interposed by answer the defense of payment. The cause being at issue and ready for trial, the parties by their attorneys, stipulated to take the testimony of the witness- for the defendant, by whom he expected to prove his defense, before a referee, the said witness being then sick and unable to attend the court.
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This is an action in equity for the foreclosure of a mortgage. The defendant interposed by answer the defense of payment. The cause being at issue and ready for trial, the parties by their attorneys, stipulated to take the testimony of the witness- for the defendant, by whom he expected to prove his defense, before a referee, the said witness being then sick and unable to attend the court. Such testimony was duly taken in pursuance of the said stipulation and fully established the defense set up in the answer, after which the witness died and before the trial. Soon after the death of the…
1Opinion of the Court
By the court, E. Darwin Smith, J.
The right of a plaintiff to discontinue his suit at his pleasure and of course, as a general proposition is undoubted, but the proposition is not unqualifiedly true. It is a right to be exercised at all times by the leave and with the consent of the court. The courts have uniformly held for instance, that a plaintiff cannot be-allowed to .discontinue his action without the payment of costs to the defendant, except in certain cases where it has-exercised the power to excuse him from the payment of such costs, which it has done in many cases. Where a defense-of…
2Cases cited4 opinions
- M'Kenster v. Van ZandtNew York Supreme Court · 1828
- Cockle v. UnderwoodThe Superior Court of New York City · 1854
- Canfield v. Northern RailroadNew York Supreme Court · 1854
- Collins v. EvansNew York Supreme Court · 1810
3Cited by8 opinions
- Electrical Accumulator Co. v. Brush Electric Co.U.S. Circuit Court for the District of Northern Ohio · 1890
- Wilder v. BoyntonNew York Supreme Court · 1872
- Axiom Min. Co. v. LittleSouth Dakota Supreme Court · 1894
- In re DavisNew York Court of Common Pleas · 1877
- Salisbury v. Binghamton Pub. Co.New York Supreme Court · 1895
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