Swart v. Borst

Hogeboom, Justice. The case of Averill agt. Patterson, in the court of appeals, (10 How. Pr. Pep. 85,) decides that to effect a discontinuance, an order must be entered. Hence the first suit was not discontinued when the Schoharie circuit commenced on the 17th of May. There was nothing that I discover up to that time, which would have prevented the plaintiff from entering judgment 'in the first action. Mo answer or appearance had been put in, unless the notice of motion to set aside the j udgment was an appearance. I can see no good reason for commencing the second suit. It seems to have been wholly unnecessary. The case above cited, further decides that where a plea or answer of a former suit pending is interposed, it is competent for the plaintiff to discontinue the first suit, and a replication of such discontinuance is a good answer to the plea. Assuming that this means that the plaintiff may discontinue the first suit after the commencement of the second, and after the answer is put in, which certainly allows him a great deal of latitude, inasmuch as it allows him thus to defeat a plea or answer which may have been interposed in perfect good faith, still I think the plaintiff has not taken the proper steps to enable him to avail himself of that reply to the defendants’ answer. True, he was not obliged to reply—and he is permitted to occupy the same position as if he had put in a reply. But assuming that he must or may be deemed to have interposed a replication that the former suit was discontinued, has he proved it ? The issue must be deemed to’have been joined at the time the notice of trial was served. At that time, at all events, there was no discontinuance. Can the plaintiff discontinue at 72 any time before the actual trial comes on, so as to defeat the defendant’s answer ? If so, he may wait circuit after circuit, if the cause is not reached, and ultimately enter his order j ust before' the actual trial, and then impose all the costs upon the defendant. I think this cannot be so, I think the discontinuance must be effected at least by the time that the issue is regarded as perfected and the cause noticed for trial. This not having been done in the present case, the defendants are entitled to judgment as having sustained their plea of a former suit pending.