Hope v. Acker

7 Abb. Pr. 308 | The Superior Court of New York City | 1858

Bosworth, J.

—The notice of discontinuance served, and payment of defendants’ costs of the action, put an end to the action, and it thenceforth ceased to be an existing or pending suit for any practical purpose. I shall not examine the papers on which the notice of this motion states it will be made, in order to determine the question whether the plaintiff, so far as it can be determined upon such papers alone, was entitled to the injunction. The order of discontinuance, to be entered on this motion, will not, therefore, contain any clause which may be construed as imputing that the court has decided a question which it has not examined: the action is terminated, and with the discontinuance of the action the injunction ceased to operate. If these facts give the defendants a right of action upon the undertaking, they have only to bring a suit and recover their damages: the court will not hear a motion in an action which has been discontinued., and the costs of which have been paid to and received by the party entitled to them, for the mere purpose of deciding whether the plaintiff had a right to the injunction on the pleadings and proceedings which had been had in the action. An order will be entered declaring the action discontinued, without further costs thereof to either party as against the other.