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RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

tlement was had without his concurrence, especially in the absence of evidence of fraud or collusion.

Roberts v. Doty, 31 Hun, 128.

Root v. Van Duzen, 32 Hun, 63.

A plaintiff, in an action against her husband to set aside certain deeds of real property on the ground of fraud, will be allowed to discontinue upon payment to her attorney of the taxable costs, where such discontinuance is in pursuance of a settlement made between the parties in good faith without notice of any lien for his compensation claimed by the plaintiff's attorney.

Keane v. Keane, 86 Hun, 159; 66 St. Rep. 806; 33 Supp. 250.

A plaintiff may be required as a condition of discontinuance to pay his attorney a compensation in addition to costs where after agreeing to compensate his attorney by a percentage on the amount collected and taxable costs and allowances, he settled the case without collection. Bryon v. Durrie, 6 Abb. N. C. 135.

9. Condemnation proceedings.

The right to discontinue proceedings for the condemnation of property under the law of eminent domain seems to rest in the sound discretion of the court when applied to for that purpose.

In re South Market St. in Johnstown, 76 Hun, 85; 57 St. Rep. 471; 27 Supp. 843.

Condemnation proceedings may, in the discretion of the court, be discontinued at any time before the title is acquired and the rights resulting there from have become vested in the property holder.

In re Syracuse, Binghamton and N. Y. R. R. Co., 4 Hun, 311.

N. Y. W. E. & B. R. R. Co. v. Thorne, 20 Wk. Dig., 128.

In re Anthony St. in the city of New York, 20 Wend. 618.
Schneider v. Rochester, 90 Hun, 171; 70 St. Rep. 290; 35 Supp. 786.
In re Application of Washington Park Commr's of Albany, 56 N. Y. 144
In re Dept. of Public Parks of the City of New York, 60 N. Y. 319.
People v. Syracuse, 78 N. Y. 56.

This right exists even if the report has been sent back to the commissioners for review in one or two particulars, although it was approved by the court. In re Anthony Street in the City of New York, 20 Wend. 618.

Where proceedings by a municipal corporation to condemn lands for public purposes have so far progressed that the amount of compensation to be paid therefor has been fixed as a finality, the proceedings cannot be discon tinued and abandoned.

People v. Syracuse, 78 N. Y. 56.

A railroad company cannot discontinue proceedings to acquire an easement to construct and operate a street railroad along a street, the effect of which would be to prejudice the rights of defendants having an interest therein, upon an undertaking given by the company in pursuance of a stipulation previously entered into between the parties in consideration of which a pre

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

liminary injunction restraining the company from constructing the road was vacated, especially where such discontinuance would violate the provisions of the stipulation by which the company agreed to vigorously prosecute the proceedings to acquire the right to operate the road.

In re Southern Boulevard R. R. Co., 43 St. Rep. 611; 17 Supp. 828.

In condemnation proceedings to acquire land, it is improper to require the corporation instituting the proceedings, to pay an extra allowance in addition to the taxable costs for the privilege of discontinuing, where no defense has been interposed or trial had.

In re Syracuse, Binghamton & N. Y. R. R. Co., 4 Hun, 311.

A railroad company may be allowed to discontinue proceedings for the condemnation of lands before confirmation of the commissioners report upon paying defendants their recoverable disbursements and counsel fees.

N. Y. W. S. & B. R. R. Co. v. Thorne, 20 Wk. Dig. 128.

10. Divorce.

The court is invested with a wider discretion in the control of applications for discontinuance of divorce actions than in ordinary cases because the public is to be regarded as a party and must be so treated by the court.

Winans v. Winans, 124 N. Y. 140; 26 N. E. 293.

Winston v. Winston, 21 App. Div. 371; 81 St. Rep. 399; 47 Supp. 399.

A plaintiff an action for absolute divorce will be allowed to discontinue upon payment of costs where the marriage is admitted and no countercharge is made, and it is no ground for denying the motion that the wife's character is aspersed by the bringing of the action and should be vindicated by a trial in open court; neither will defendant's counsel fees be allowed where no application was made therefor during the pendency of the suit.

Moore v. Moore, 51 St. Rep. 911; 22 Supp. 450.

A plaintiff in a divorce action against a wife will not be allowed to discontinue, where the defense is a decree of absolute divorce granted the wife in a foreign state, upon the faith of which she had contracted a second marriage, and the sole question to be decided is whether that decree is valid, especially when the question as to the proper disposition of a child of the parties is involved.

Winston v. Winston, 21 App. Div. 371; 81 St. Rep. 399; 47 Supp. 399. So a plaintiff in an action of divorce cannot enter an ex parte order discontinuing the action upon payment of costs, where the defendant has answered denying the charge of adultery and asked for affirmative relief and an order has been made requiring the plaintiff to pay temporary alimony to his wife which order he has not complied with.

Leslie v. Leslie, 10 Abb. Pr. N. S. 64.

And discontinuance of an action of the same nature will likewise be refused where the defendant denied the marriage as well as the adultery charged, and the issue involved in its result a determination whether an

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

other woman to whom the defendant was married was his legal wife and their child legitimate.

Winans v. Winans, 124 N. Y. 140; 26 N. E. 293.

An action for absolute divorce cannot be discontinued upon motion of plaintiff where the defendant answered denying the charge of adultery and setting up countercharges of adultery by the plaintiff and demanded affirmative relief.

Campbell v. Campbell, 12 Hun, 636.

c. After counterclaim interposed.

Whether a plaintiff should be permitted to discontinue an action in which the defendant has interposed a counterclaim rests in the sound discretion of the court.

Wanamaker v. Megraw, 27 Misc. 591; 93 St. Rep. 81; 59 Supp. 81.
Walsh v. Walsh, 33 App. Div. 579; 87 St. Rep. 881; 53 Supp. 881.

But as a rule the plaintiff may discontinue upon payment of costs to the date of the discontinuance, even though the defendant has interposed a counterclaim, where no substantial rights of other parties have accrued and no injustice would be done by permitting the discontinuance.

Cohn v. Anathan, 16 Civ. Pro. 178; 24 St. Rep. 295; 4 Supp. 97.
Oaksmith v. Sutherland, 4 Abb. Pr. 15.

Seaboard & Roanoke R. R. Co. v. Ward, 18 Barb. 595.

Felix v. Vanslooten, 43 St. Rep. 791; 17 Supp. 844.

And it has been held that a plaintiff will be allowed to discontinue an action upon payment of costs, although the defendant has set up in his answer a counterclaim to which the plaintiff has replied, where the defendant will not be barred in the enforcement of his counterclaim by the statute of limitations.

Rees v. Van Patten, 13 How. Pr. 258.

So a plaintiff in an action for services has a right at any time before the action is finally submitted, to discontinue, even if the defendant has interposed a counterclaim of breach of the contract under which the work was performed and seeks damages for such breach.

Bidwell v. Weeks, 2 Hilt. 106.

Likewise, the court will permit a plaintiff to discontinue an action in equity, although a counterclaim has been interposed, where it does not appear that the counterclaim will be prejudiced by the discontinuance or that the defendants have secured by the proceedings some rights in reference to the subject matter of the action or their counterclaim, of which the dis continuance would deprive them.

Pacific Mail S. Co. v. Leuling, 7 Abb. Pr. (N. S.) 37.

But a plaintiff in an action at law founded on a contract cannot discontinue upon payment of costs, on the mere ground of his disinclination to

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

proceed further in the action, especially when a counterclaim has been set up in the answer, and no reply has been made thereto.

Cockle v. Underwood, 3 Duer. 676.

And a discontinuance by the plaintiff will not be allowed where the defendant has set up a counterclaim for a large balance over and above the plaintiff's claim, which would be barred by the statute of limitations owing to the long time during which the suit has been pending.

Van Alen v. Schermerhorn, 14 How. Pr. 287.

So a plaintiff will not be allowed to discontinue an action to which the defendant had interposed a counterclaim, upon the death of the latter, if the action is one that survives and his personal representatives make application to have the cause continued against them, especially where the cause has been nearly completed and a cross action by the defendant had been stayed on the application of the plaintiff, upon the ground that the defendant could obtain relief on the counterclaim in the action sought to be discontinued.

Livermore v. Brainbridge, 61 Barb. 358; 43 How. Pr. 272 Aff'g 43 How. Pr. 53.

Likewise, discontinuance by the plaintiff, upon the ground of the insolvency of the defendant not established by a dicharge in bankruptcy or under the insolvent act, will be refused, where the defendant has interposed a counterclaim upon which he would be entitled to recover against the plaintiff upon proof of the allegations set up.

Gwathney v. Cheatham, 21 Hun, 576.

Under any circumstances, a plaintiff may not take an order to discontinue as a matter of course, but must apply to the court for an order of discontinuance, if the answer of the defendant contains a counterclaim which stands confessed as true in fact for want of a reply, or as sufficient in law for want of demurrer.

Geenia v. Keah, 66 Barb. 245.

A plaintiff will not be allowed to discontinue so as to commence a new action and obtain a new order of arrest on the ground of fraudulent representations, the order of arrest in the action sought to be discontinued having been vacated on the ground that the alleged fraudulent representations did not apply to the whole cause of action, where the defendant has interposed a counterclaim.

Livermore v. Bordell, 60 How. Pr. 308.

A plaintiff in an action to enforce an award made by arbitrators of the value of a building erected by a lessee on land of the plaintiff under the covenants of a lease of which the plaintiff was lessor, will not be allowed to discontinue without costs, on the ground that she has since discovered that the building had not been built in accordance with the terms of the lease and that she was under no obligation to pay therefor, where the defendant had interposed the defense that the award was not just and asked that the

RIGHT OF PLAINTIFF TO DISCONTINUE ACTION,-continued.

value of the building be ascertained by the court, and for other affirmative relief.

Crosby v. Fitzpatrick, 33 Week. Dig. 35.

A plaintiff in an action to recover purchase money due under a contract for the purchase of real estate, in the absence of special grounds, will not be allowed to discontinue, where the defendant interposed a defense that the contract and the deed to the premises to the plaintiff, together, constituted a mortgage which were usurious and void, and asked to have them adjudged a mortgage and declared void and annulled and surrendered, to which the plaintiff filed no demurrer or reply.

Greenia v. Keah, 66 Barb. 245.

So a plaintiff in an action to restrain defendants from interfering with a fence inclosing an alleged private road, will not be allowed to discontinue upon payment of costs and disbursements, where the defendant answered that he had a right by deed to use the road and that the same was a public highway, and asked for an injunction restraining the plaintiff from building up the fence.

Iselin v. Smith, 62 Hun, 221; 42 St. Rep. 161; 16 Supp. 683.

A non-resident plaintiff will not be allowed to discontinue on the ground that it had been discovered that it was necessary to examine a large number of witnesses by commission, where counterclaims have been interposed, although plaintiff's attorney agrees to stipulate that another action will be brought to which such counterclaims may be interposed, it not appearing that he had authority to so bind the plaintiff.

Washington Glass Co. v. Benjamin, 43 St. Rep. 352; 17 Supp. 135.

A plaintiff in an action to set aside a certain grant of real estate made by him to another, of whom the defendant, is successor in interest, may discontinue, although another defendant brought in as claiming an interest in the property adverse to the other defendant, has filed an answer and served it upon the other defendant, who did not appear in the action, claiming title to the property as against him, in a settlement of which question the plaintiff has no interest, it being foreign to the purpose of the ac

tion.

New York v. Lynch, 1 App. Div. 544; 73 St. Rep. 189; 37 Supp. 467.

Where the court has denied a motion by the plaintiff to amend his reply to the counterclaim interposed by the defendant, by pleading the statute of frauds thereto, the plaintiff should not be allowed to discontinue the action except upon stipulation not to interpose that statute as a defense to any action founded upon the matter set up in the counterclaim.

Yellow Pine Co. v. Lehigh Valley Creosoting Co., 32 App. Div. 51; 86 St. Rep. 281; 52 Supp. 281.

An ex parte order of discontinuance will be set aside and the cause allowed to proceed to judgment, where the defendants interposed a counterclaim and presented evidence from which it appeared that the plaintiff was likely to recover a less amount than the defendants would recover agains.

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