Weidler v. Weidler

Gildersleeve, J. The action is for goods sold and delivered. At the trial, before the submission of the case to the jury, the plaintiff moved to discontinue the action, with costs. " The justice, however, refused to permit such a discontinuance and ordered the case to proceed. The jury found in favor of defendant, whereupon the justice, on such verdict, gave judgment absolute for defendant, dismissing the complaint, with costs. The plaintiff appeals. It is well settled that an action in the Municipal Court may be voluntarily discontinued by the plaintiff at any time before the action is finally submitted, and that a refusal of the justice to permit such a discontinuance is a sufficient ground for a reversal of a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728. Under the provisions of the statute (Consol. Act, Laws of 1882, chap. 410, § 1382, subd. 1), the justice should have al [220] lowed the plaintiff to discontinue on payment of costs, and without prejudice to a new action. Judgment reversed and new trial ordered, with costs to abide the event. Freedman, P. J., and McAdam, J., concur. Judgment reversed and new trial ordered, with- costs to abide event.