Cooke v. Beach

By the court, Hogeboom, Justice. I think the order of the special term should be affirmed. 1. The general rule is, that a plaintiff has a right to discontinue his action as a matter of course, oh the payment of costs. (Bedell agt. Powell, 13 Barb., 183, 185, 186.) And this rule applies as well to cases in equity as to actions at law. (1 Barb. Ch. Pr., 225,) There may be and there are circumstances controlling this right—as where, from the state of the pleadings or the proceedings in the cause, the adverse party has acquired some absolute rights which a discontinuance would destroy or impair. (Seaboard & Roanoke R. R. Co. agt. Ward, 18 Barb., 595 ; Van Allen agt. Schermerhorn, 14 How. R., 281.) In this case we have not the pleadings before us, nor are we advised by the papers on the motion that there are any set-offs or counterclaims .which the defendants intend to interpose. Certainly they have acquired no fixed rights against the plaintiff, by the pleadings or proceedings in the cause, which a discontinuance of the cause would defeat. It is said, indeed, that the discontinuance will deprive the defendants - of the testimony of Ephraim [359] Beach. This is probably so ; but I do not see that this is one of those consequences to prevent which the defendants have a right to ask our interposition. If the testimony of.Beach had been taken and the cause had come to trial, and the plaintiff had offered no evidence, her complaint would have been dismissed, Beach’s testimony lost, and a new suit liable to be commenced. If Beach had been in fact examined, de bene esse, there would have been nothing to prevent a discontinuance of the action by the plaintiff thereon, and in such event Beach’s testimony would have fallen with the cause. And I do not think the defendants ought to be placed in a better situation than if the testimony had in fact been taken de bene esse. Indeed, the stipulation is that it should have that precise effect—no more. The defendants should have provided for the contingency which has occurred, by perpetuating the testimony of Beach. At all events, it does not seem to me that we ought to prevent (if we have the right to prevent) the discontinuance of the action, except upon compliance with the condition suggested. 2. I am inclined to think the mode of discontinuance regular, to wit: by an ex parte motion to the court, or an ex parte order in the clerk’s office. (1 Barb. Ch. Pr., 228, 566, 581; Cummins agt. Bennett, 8 Paige, 79, 81.) If the former be the true mode, then so long as the party has the right to a discontinuance in the one mode or the other, perhaps it is a mere matter of practice, and not reviewable upon appeal, which mode a party shall be permitted to pursue. And except in a case of abuse of discretion, I think the decision of the special term should be held conclusive on that point, and the appeal not available, inasmuch as the order affects no substantial right. If the right to the order is not absolute, but depending upon equitable considerations, I have already attempted to show that those equities do not exist in this case in favor of the defendants to such an extent as [360] to justify our interference. Moreover, if the proceedings taken by the plaintiff have not been effectual to work an absolute discontinuance, I do not see why, in the second suit, the defendants may not take advantage of it by answer, alleging the existence and pendency of a former suit in abatement of the second action. I think the order of the special term should be affirmed, with $10 costs.