Harper Machinery Co. v. Donegan

SEABURY, J. The complaint alleges a cause of action for the alleged breach of an express warranty. The answer was a general denial. The answer was amended upon the trial, but the amendment did not demand affirmative relief from the plaintiff in this action. Upon the close of the testimony the plaintiff made a motion to discontinue this action. Thereafter the learned court below rendered judgment in favor of the defendant and against the plaintiff for $432.13. The plaintiff had a right voluntarily to discontinue the action before it wa's finally submitted. Nichols v. Williams, 42 Misc. Rep. 527, 86 N. Y. Supp. 136. The judgment is reversed, with costs to the appellant, and the complaint is dismissed, with costs of the action to the respondent, without prejudice to a new action. All concur.