
    Yellow Pine Company, Respondent, v. Lehigh Valley Creosoting Company, Appellant.
    
      Leave to discontinue an action — condition imposed that the Statute of Vrauds shall not he interposed to the defendants counterclaim in any new action.
    
    Leave to discontinue an action upon the payment of the costs thereof will not.be granted to a plaintiff who has already been refused permission to amend his reply in order to set up the Statute of Frauds as a defense to the defendant’s counterclaim, unless the plaintiff stipulates that he will not plead the Statute . of Frauds in any new action which he may bring in which the contract constituting the basis of the defendant’s counterclaim is involved.
    Appeal by the defendant, the Lehigh Valley Creosoting Company, from. an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of March, 1898, granting the plaintiff’s motion for leave to discontinue the action upon payment of costs.
    
      James G. Janeway, for the appellant.
    
      Robert R. Wilson, for the respondent.
   Willard Bartlett, J.:

It is perfectly plain that the discontinuance of this action is sought , in order to strengthen the position of the plaintiff in reference to-the subject-matter of the defendant’s counterclaim. The plaintiff wanted to plead the Statute of Frauds as a barrier to the counterclaim, and asked for leave to amend the reply accordingly. This having been denied at the Special Term, -on- the ground that the proposed amendment of the reply would be. inconsistent with the-allegations of the complaint, the plaintiff has asked and received the leave of the court below to discontinue the presept action, upon paying to the defendant the costs and disbursements up to the time when the motion- was granted. The plaintiff is thus left at liberty, to sue the defendant-anew upon the very matters in controversy here, but in such a way as to attack the contract which is the basis of the defendant’s, counterclaim, on the ground that it was not signed by the plaintiff, and, therefore, was not enforcible under the Statute of Frauds, This it cannot do in the case at bar as the pleadings now stand.

A good deal of space in the briefs of counsel is occupied by a discussion of the power of the court to permit the, plaintiff to discontinue,. as against the objection of a defendant who .has- interposed a counterclaim. The existence of the power, though cases may be found in which it seems to have been doubted, must now be regarded as well established;. but it is equally well settled that the power is one which the court.is not bound to exercise in favor of the plaintiff.

'“ In' ordinary actions,” say the Court ■ of- Appeals in the' Matter of Lasak (131 N. T. 624, 627):,.“it is not always the absolute right of a plaintiff to- discontinue his action. . In all cases where a defendant becomes an actor and is-interested in the continuance and trial of -the action, as where he sets up a counterclaim or sets Up a claim to property which is in litigation and asks in his answer affirmative-relief in reference thereto, he may resist the discontinuance of the action, and then it rests in the discretion of the court whether or not the plaintiff shall be- permitted.' to discontinue it.” And -that discretion should lead to a denial of the application where circnm- ■ stances have occurred since the commencement of the action which would make the desired discontinuance operate-oppressively, harshly er inequitably Upon the. defendant, who has interposed and wishes to maintain his claim for affirmative relief. (Winans v. Winans, 124 N. Y. 140, and cases there cited.)

The effect of allowing the plaintiff to discontinue the present action is to deprive the defendant of the benefit of the decision of the Special Term refusing to permit an amendment of the reply. It seems to me clearly inequitable for the court thus to take away from a party the advantage accruing to him from a decision which it has made in his favor, and allow his opponent to set up against him in another litigation the very matters which, by that decision, it has refused to allow to be'pleaded in the first action. For this reason, I think the order under review should be reversed or modified so as to protect the defendant against such an unjust result.

It may be that .the plaintiff exaggerates the importance of obtaining-' leave to discontinue in order to get an opportunity to plead the insufficiency of the contract in suit under the Statute of Frauds. An amendment of the complaint in the present action, if circumstances exist to warrant the court in permitting such an amendment, would open the way to the presentation of the point Avhich the plaintiff desires to raise. But if counsel .for the plaintiff cannot satisfy the court that in this litigation he ought to be alloAved in some manner to plead the Statute of Frauds, he should not be given leave to discontinue simply in order that he may plead it in another suit on the very same contract.

I think the order of discontinuance should be reversed unless the plaintiff elects to stipulate .that it Avill not plead the Statute of Frauds in any action between the parties involving the contract here in suit.

All concurred.

Order reversed, with ten dollars costs and disbursements, unless the plaintiff, within ten days, stipulates that it will not'plead the Statute of Frauds in any action between the parties involving the contract here in suit, in which case order affirmed, without costs.  