100 N.Y.S. 781 | N.Y. App. Div. | 1906
This action was brought to recover $50,000 as the damages sustained -by the plaintiff by a refusal .of the defendant to perform a contract in relation to certain patents owned -by'.the plaintiff. Before an. answer was interposed, the plaintiff applied to discontinue-the action and the costs were tendered, but the defendant refused to receive"the costs on the ground that the plaintiff intended to assign the action to a resident of Hew Yolk so as to be relieved of the obligation to give security for costs. Upon the application to discontinue the action the. court required as a condition that the' plaintiff should, stipulate not to “assign the claim made herein-for the purpose of suit thereon.” I think that it is quite clear that the
To justify the court in refusing an application to discontinue an action at law it must appear that the defendant had some right or equity which requires that .the action should be continued until its termination.
There is nothing here to show that the defendant was entitled to have this action continued. The defendant does not claim that he has a counterclaim which he would lose his right to enforce if the action was discontinued. If plaintiff did not wish to proceed it could suffer a nonsuit and its right to assign the cause of action or to commence a new action would not at all be affected. There was nothing that appeared that would justify the court in this case in refusing to allow a discontinuance on the usual terms, namely, upon
. It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion allowing the action to bé discontinued upon payment of actual costs granted. .
O’Brien, P. J., Laughlín, Clarke and Scott, JJ., concurred!
Order reversed,, with1 ten dollars costs and disbursements, and motion granted allowing action to be discontinued on payment of actual costs., . .