157 N.Y.S. 240 | N.Y. App. Term. | 1916
The only question to be determined upon this appeal is the plaintiff’s right to discontinue an action at the time he asked leave to do so. The record discloses that while the plaintiff was' being cross-examined upon his rebuttal testimony the court said: V That is all.” The witness left the stand and a colloquy ensued during which the stenographer noted ‘ ‘ both sides rest. ’ ’ Subsequently and during a
In Winans v. Winans, 124 N. Y. 140, the court said: “An application for leave to discontinue an action is addressed to the legal, not the arbitrary discretion of the court, and it may not be denied capriciously, but may be refused whenever circumstances exist which afford a basis for the exercise of legal discretion; in such a case the court has but to consider whether anything has occurred since the commencement of the action which would so far prejudice defendant’s interest, in the event' of a discontinuance, as to require a denial of the application.”
, Nothing was shown in this case calling for a denial of plaintiff’s request and he should have been allowed to discontinue. Judgment for costs would of course go against him in such a case. •
Guy and Bijur, JJ., concur.
Judgment reversed, with thirty dollars costs to appellant.