Block v. Ottenberg

The order should be affirmed. Admitting that the authorities abundantly establish a plaintiff’s right to discontinue an action whenever after issue joined he shall determine so to do, the authorities are equally clear that the rule is subject to successful objection on the part of a defendant where either a counterclaim has been interposed, “ or when equities exist which might be defeated, or a defendant otherwise prejudiced, if the leave to discontinue was granted.” Telephonine Co. v. Douthitt, 115 App. Div. 362. The answers set up an affirmative defense, sufficient, if alleged by way of…