
    SUPREME COURT.
    St. John agt. Hart.
    Where the plaintiff moved for leave to discontinue without costa, the defendant having put in an answer setting up the defence of infancy, held, that the motion should have been made as soon as the plaintiff was aware of the defence. Having proceeded and made costs after that, he must pay them.
    
      New - York Special Term,
    July, 1858.
    Motion by plaintiff for leave to discontinue the action with out costs.
    F. Tillou, attorney for plaintiff.
    
    H. P. Townsend, attorney for defendant.
    
   Ingraham, Justice.

The plaintiff should have made this motion as soon as he was aware of the defence of infancy. Since the answer was put in he has continued to proceed with the cause, and has materially increased the costs. There is no excuse for this, and he can only be relieved on payment of them.

Motion for leave to discontinue is granted on payment of the costs after the answer was put in.

No costs allowed on this motion.  