
    CARPENTIER v. WILSON.
    
      N. Y. Supreme Court, First District ;
    
    
      Special Term at Chambers, April, 1884.
    Discontinuance oe action.
    The fact that plaintiff has been permitted to withdraw a juror after the case has been partially tried, does not preclude him from discontinuing on payment of costs.
    Where he was allowed to withdraw a juror upon terms, among which was that the case should be set down for trial for another day, Held, that he still had the right either to proceed to trial on the adjourned day, or to discontinue upon payment of defendant’s costs.
    Motion to vacate order discontinuing action.
   Lawrence, J.

The motion to vacate the order made on the 27th of March, 1884, discontinuing this action, with costs to the defendant, should, I think, be denied. The general rule is that a plaintiff has a right to discontinue his action as a matter of course, on the payment of costs. See Cooke v. Beach (25 How. Pr. 350,358) and cases cited. In this case it appears that the cause was placed upon the special circuit calendar and partially tried ; that the justice presiding at the trial permitted the withdrawal of a juror, upon the condition that the plaintiff pay the jury fee, the trial fee of $30, and the sum of $5, which were fixed as the ex penses of the defendant for preparing for trial, and the case was set down for trial for the 28th of March. This left the case in the same position as it stood in before the trial had commenced, and it seems to me that the defendant, by reason of the abortive attempt at a trial, did not acquire a right to insist that the trial should again be proceeded with. I understand it to be conceded that the costs imposed by the justice at the circuit have already been paid, and it would appear, therefore, that no reason exists for refusing to allow the plaintiff to discontinue, upon payment of all other costs in the action, to be taxed and adjusted by the clerk. The case of Duncan v. Dewitt (7 Hun, 184) is not in conflict with these views. There the plaintiff’s counsel, when the- cause was called for trial, proposed to discontinue the action, and apparently without costs, and the defendant’s counsel moved for a dismissal of the complaint. The justice presiding thought that a dismissal of the complaint should be granted, and so directed, and the general term, in its opinion, states that there was no design on the part of the plaintiff to proceed to the trial of the cause on the issue made by the pleadings. Here the justice, presiding at the circuit court, in his discretion, held that it would be proper to allow the withdrawal of a juror, which, as before stated, saved to the plaintiff the right either to proceed to trial on the adjourned day, or to discontinue, upon payment of all the costs of the defendant. The motion will be denied, without costs.  