RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued. The court may, in its discretion, on the fact of infancy being proved, permit the plaintiff to discontinue without costs as to such infant defendant sued with another, where they answered separately, the infant pleading nis infancy as his sole defense. Butler v. Morris, 1 Bosw. 329. Hartness v. Thompson, 5 Johns. 160. Wellington v. Claason, 9 Abb. Pr. 175; 18 How. Pr. 10. Ex parte Nelson, 1 Cow. 417. The plaintiff will not be allowed to discontinue without costs on the ground that the defendant interposed infancy as a defense, where he went to trial with a knowledge of the defense and put the defendant to the expense of proving it. Leggett v. Boyd, 6 Wend. 500. 4. Insolvency or bankruptcy. The right of the plaintiff to discontinue without costs is undisputed where the defendant is discharged during the pendency of the action under an insolvent or bankruptcy act. Hart v. Storey, 1 Johns. 143. Collins v. Evans, 6 Johns. 333. Labrow v. Woram, 5 Hill, 373. Smith v. Skinner, 1 How. Pr. 122. Merritt v. Arden, 1 Wend. 91. Merchants Bank v. Moore, 2 Johns. 294. But in order that the plaintiff may claim such right the defendant must have actually obtained his discharge. It is not suflicient that proceedings for that purpose are pending, or that the defendant is insolvent. Collins v. Evans, 6 Johns. 333. Gwathney v. Cheatham, 21 Hun, 576. This privilege is properly granted to the plaintiff, although the defendant stipulates to waive the discharge. Honeywell v. Burns, 8 Cow. 121. Ashworth v. Wrigley, 1 Hall, 145. The fact that the certificate of discharge has not been obtained, however, where a decree for such discharge has been granted, will not preclude the plaintiff from the right to discontinue without costs. Park v. Moore, 4 Hill, 592. Leave to discontinue without costs, however, will not be granted because the defendant has since the commencement of the action been discharged as a voluntary bankrupt, where a judgment of non-suit against the plaintiff stands unreversed. Sandford v. Sinclair, 6 Hill, 248 RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued. But in the case last cited the court said that if the plaintiff succeeded in reversing the non-suit on writ of error then pending, he might be entitled to discontinue without costs even though the defendant should waive the benefit of his discharge. But costs including those of opposing the motion of discontinuance will be imposed upon the plaintiff where one of the defendants pleaded a bankupt's discharge granted before the suit was commenced, although he was a joint debtor and a necessary party. Camp v. Gifford, 7 Hill, 169. An order of discontinuance without costs, on receiving a plea of an insolvent's discharge, cannot be entered as of course, but a motion therefor must be made. Fifield v. Brown, 2 Cow. 503. If, after learning of the discharge, the plaintiff proceeds in the action, he cannot discontinue except upon paying the costs since the discharge. Merritt v. Arden, 1 Wend. 91. Ludlow v. Hackett, 18 Johns. 252. The plaintiff will not be allowed to discontinue without costs althougn the defendant, pending the action, has secured his discharge in bankruptcy, where, knowing of the discharge, he nevertheless proceeded with the action and it appears never had a good cause of action and was misled by no false appearance of the defendant in bringing it, especially as the plaintiff had no longer any interest therein, a third party having purchased the claim on a speculation with knowledge of at least the pendency of the application in bankruptcy. Ludington v. Bell, 13 J. & S. 513. A plaintiff will not be allowed to discontinue without payment of the costs of defendant's attorney upon the defendant becoming insolvent, and a stipu lation being made between the parties that the action should be discontinued without costs, where before the order of discontinuance was entered the defendant's attorney served a notice on plaintiff that he had a claim for costs and forbidding the discontinuance unless his costs were paid. Warner v. Canovan, 7 Lans. 36. A plaintiff will not be allowed to discontinue an action in ejectment without costs on the ground that the defendant is insolvent and has been sentenced to the state prison, if the latter gives security for costs and mesne profits. Fort v. Palmerton, 19 Wend. 94. A plaintiff in a replevin action in which the property has been delivered to him, cannot discontinue by the entry of an order and the payment of costs where the defendant has filed an answer, which if true, entitles him to a return of the goods. Wilson v. Wheeler, 6 How. Pr. 49. The court will, in the exercise of its discretion, allow the plaintiff who is an assignee in bankruptcy to discontinue an action for the recovery of cer RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued. tain property alleged to belong to the bankrupt, without costs, unless the defendant will stipulate that the plaintiff may, upon the trial, read certain evidence taken in other actions between the same parties in other courts, which the plaintiff supposed he would be permitted to do under a certain stipulation previously entered into between the parties. Hilborne v. Kolle, 2 Week. Dig. 182. 5. Mistake. A plaintiff may discontinue without costs as to a defendant made a party by mistake and never served with summons or complaint, although he ap peared and filed an answer and opposed the motion of discontinuance. Waterbury Leather M'i'g. Co. v. Krause, 1 Hilt. 560. But a discontinuance without costs will not be allowed on the ground that the action was against the wrong defendant, where plaintiff shows no sufficient excuse for the mistake and the defendant has been put to the expense of one trial. Layman v. New York Bank Note Co., 20 Supp. 431. A plaintiff in an action at law will, in the exercise of the sound discretion of the court, before final judgment, be allowed to discontinue upon payment of ten dollars costs, where the summons was served upon the wrong person, although having the same name, who answered and the action had been noticed and placed upon the trial calendar before the mistake was discovered. National Wall Paper Co. v. Szerlip, 9 App. Div. 206; 75 St. Rep. 787; 41 Supp. 376; 3 Ann. Cas. 356. A plaintiff in a partition action, will be allowed to discontinue after judgment has been entered directing that the land be sold and the same has been accordingly advertised for sale, upon payment of all costs and expenses, where he brought the action under the mistaken belief, induced by the representations of the life tenant, that it would put the property in a situation where it could be sold when desired, but that no sale need take place at once, and now believes that an immediate sale would be prejudicial to his interest and that of the other remainder-men and it does not appear that a discontinuance will prejudice the rights of anyone acquired by reason of the bring ing of the suit. Furman v. Furman, 12 Hun, 441. A plaintiff in an action for deceit in the sale of an imitation stone for the genuine, will not be allowed to discontinue without costs on the ground that during the progress of the trial it was discovered that the stone was genuine and that he had been deceived by experts, and the conduct of the defendant himself who, when requested to take the stone back, practically admitted its being a doublet, but expressed a belief that the stone had been changed after the sale, where the defendant denied the fraud in his answer and al RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,―continued. leged that the stone he sold was genuine, but in such case discontinuance will be allowed upon payment of costs. Ferguson v. Austin, 1 City Ct. Rep. 53. A plaintiff will be allowed to discontinue upon payment of one bill of costs but not without paying any costs where he commenced his action against the defendants as copartners and it appeared subsequently that the debtor was a corporation and not a copartnership and the two defendants needlessly severed in their defense and answered separately by separate attorneys. Ackroyd v. Newton, 24 Misc. 424; 87 St. Rep. 682; 53 Supp. 682. 6. En autre droit. Thus such right exists in an action necessarily prosecuted in the right of the plaintiff's intestate, where the defendant pleaded a discharge in bankruptcy in the lifetime of the intestate, of which defense the plaintiff was not aware until interposed. Fowler v. Hotchstrasser, 3 Denio, 164. An executor or administrator who has commenced an action by mistake or has ascertained that it would be useless to proceed in consequence of facts subsequently discovered, will be permitted to discontinue without the pay. ment of costs. Arnoux v. Steinbrenner, 1 Paige, 82. Fowler v. Hotchstrasser, 3 Denio, 164. Phoenix v. Hill, 3 Johns. 249. So the assignee of an insolvent debtor will be allowed to discontinue an action brought to enforce a claim in favor of the estate without costs after the defendant's appearance, on the ground that the latter is insolvent, though not actually discharged under the insolvent act, which insolvency was unknown to the plaintiff when the suit was commenced. Reeder v. Seelye, 4 Cow. 548. An action brought on behalf of a bank in the name of its president is not an action prosecuted in another's right so as to excuse the plaintiff from paying costs upon discontinuance. Lowerre v. Vail, 5 Abb. Pr. 229. A sheriff will not be allowed to discontinue an action to collect money due a debtor on insurance policies, by virtue of an attachment, where by reason of the lapse of time the debtor would be deprived of the right to commence or prosecute an action in his own name to collect the money. Bowe v. Knickerbocker Life Insurance Company, 27 Hun, 312. A plaintiff in an action, brought by leave of the surrogate, as executrix and individually, upon the bond of an executor whose letters tstatmentary had been revoked, cannot discontinue without costs upon a reversal upon appeal, during the pendency of the action, of the order revoking the letters testamentary. Hood v. Hood, 12 Daly, 113. RIGHT OF PLAINTIFF TO DISCONTINUE ACTION, -continued. 7. Statute of limitations. A plea of the statute of limitations, being within the knowledge of the plaintiff when he brought his action, is not sufficient ground for allowing a discontinuance without costs, especially when the plaintiff continued to increase the costs after the defense was interposed by taking testimony relative to it. Houseman v. Rosenfield, 18 Abb. Pr. 379. 8. Without knowledge or consent of attorneys. The court is authorized to prescribe the terms upon which an action shall be discontinued where the compensation of an attorney is involved. Bryon v. Durrie, 6 Abb. N. C. 135. Parties to an action have a right to make an honest settlement thereof without regard to their attorneys, and plaintiff's attorney cannot continue the litigation to judgment to recover the amount of his fee, notwithstanding the amendment in 1879 to § 66 of the Code of Civil Procedure giving attorneys a lien on the cause of action. Dolliver v. American Swan Boat Co., 32 Misc. 264; 95 St. Rep. 978; 65 Supp. 978. A discontinuance of an action pending an appeal from a judgment against the plaintiff for costs, by agreement of the parties without the knowledge or consent of defendant's attorney, will be enforced where the latter had no vested rights which such discontinuance interferred with. Brown v. Comstock, 10 Barb. 67, S. C. 3 Code R. 142. An order of discontinuance without costs entered ex parte on stipulation of the plaintiff and without application to or special direction of the court, will not be set aside on the ground that the settlement was made with the design of preventing the plaintiff's attorney from obtaining his costs, in the absence of evidence showing that the plaintiff was deceived or that any fraud was practiced on her. McBratney v. R. W. & O. R. R. Co., 13 Week. Dig. 535. But a plaintiff will not be allowed to discontinue without notice to his attorney or in any way protecting his rights where he had an interest or lien upon the claim in suit of which the defendant's attorney had notice. Eberhardt v. Shuster, 10 Abb. N. C. 374. So a plaintiff will be compelled to pay costs upon a discontinuance, in pursuance of a settlement between the parties collusively made for the purpose of defrauding an attorney out of his costs. Filer v. Korn, 3 Misc. 624; 52 St. Rep. 266; 23 Supp. 115. The plaintiff's attorney cannot prevent a discontinuance of an action brought to recover the value of services rendered to the defendant which was paid in full by the latter after issue was joined, on the ground that the set |