
    CHARLES H. CLEARWATER, Respondent, v. NICHOLAS H. DECKER, Impleaded, etc., Appellant.
    
      Discontinuance — when it should not he allowed.
    
    After the evidence in a case has been agreed upon and submitted to the justice trying the same, and a motion to open the case and take further evidence has been denied by him, a discontinuance of the action should not be allowed.
    Appeal from an order discontinuing' this action on the application of the plaintiff. After this action had been commenced it was agreed to submit the same to the justice trying the case upon a statement of facts agreed upon by the parties. Subsequently an application was made by the plaintiff for leave to change and alter the form of the submission, which was denied.
    Thereafter the plaintiff applied, upon notice, to another justice for leave to discontinue the action, which was granted. From this order this appeal is taken.
    
      Samuel G. Courtney, for the appellant.
    
      Alfred C. Chapin, for the respondent.
   Per Ouriam:

The evidence had been agreed upon by stipulation and had been submitted to the judge who was trying the case. A motion was subsequently made before him, which was, in effect, a motion to open the case and take further or other evidence. This motion he denied. All the evidence in the action therefore was before the judge. Nothing remained except the argument of counsel. Under these circumstances we think that the plaintiff should not have been allowed to discontinue. The case was in possession of the court for trial. To permit a discontinuance at that time was to permit the plaintiff to -withdraw the case from one judge who had heard (or might have read) the evidence, and to bring on a new action before some tribunal thought to be more favorable.

¥e are referred by the plaintiff to the case of Cummins v. Bennett (8 Paige, 81). There had been no trial in the case; nor had a trial been commenced before the court.

We think the order should be reversed, with costs.

Present — -Learned, P. J., Bockes and Osborn, JJ\

Order reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.  