
    (88 Misc. Rep. 118)
    CONNOLLY v. EMPIRE UNITED RYS. CO., Inc.
    (Oswego County Court.
    December, 1914.)
    Courts (§ 189) — Discontinuance — Right — City Court — Offer to Pay Costs.
    Where, in a damage suit brought in the City Court óf Fulton, no counterclaim was pleaded, charter prohibition shown, or circumstances disclosed bringing the ease within any exception to the general rule that a plaintiff is entitled to discontinue on payment of costs, plaintiff, after two witnesses had been sworn in his behalf, should have been allowed to discontinue the action on offering to pay costs.
    lEd. Note. — For other cases, see Courts, Cent. Dig. §§ 409, 412, 413; 429, 458; Dec. Dig. § 189.*]
    
      Appeal from City Court of Fulton.
    Action by Sylvester Connolly against the Empire United Railways Company, Incorporated. From judgment for defendant, plaintiff appeals.
    Reversed.
    Thomas L. McKay, of Oswego, for appellant.
    Ernest I. Edgcomb, of Syracuse, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   ROWE, J.

The sole question in this case is whether the trial court committed error which requires a reversal of the judgment rendered for the defendant herein, in refusing to grant the motion of the plaintiff to discontinue the action. The question was clearly presented. After two witnesses were sworn for the plaintiff, his counsel stated that the plaintiff desired to discontinue this action and pay the costs. The motion was denied and exception taken. The record then reads as follows :

“Plaintiff at this time submits to a nonsuit. I simply offer, and the court declines to allow the offer, and the defendant’s attorneys refuse to consent. The offer is declined and denied by the court, and the plaintiff given an exception. Plaintiff at this time offers to submit to a nonsuit, with such costs, and also desires at this time to pay the costs incidental to the nonsuit.”

The plaintiff then swore another witness, but evidently did not thereby waive his right to discontinue, for the plaintiff then rested, and again' moved to discontinue the action, and offered to pay the costs. The records show the following proceeding:

“Mr. McKay: Plaintiff again desires to discontinue this action and pay the costs. (Motion denied. Exception.) Plaintiff also offers at this time to submit a nonsuit and to pay the costs. (Motion denied. Exception.) Plaintiff desires once more to discontinue this action and to pay the costs. (Motion denied. Exception.) Plaintiff also offers at this time to submit to a nonsuit and pay the costs. (Motion denied. • Exception.)”

A tender of the costs was not necessary, as the offer was made by the plaintiff to pay them at that time, if allowed to discontinue the suit.' The general rule is that a plaintiff is entitled to an order of discontinuance upon the payment of costs as a matter of right. Matter of Butler, 101 N. Y. 303, 307, 4 N. E. 518; Winans v. Winans, 124 N. Y. 140, 26 N. E. 293; 3 Waite,. Law & Pr. (7th Ed.) 365; Code Civ. Proc. §§ 3007,3013.

No different rule prevails in the City Court of Fulton, under the city charter. Section 200, referred to by respondent, provides for a discontinuance upon the stipulation of the parties or their attorneys, but does not take away the right of the plaintiff to discontinue the action brought by him any time before a verdict is rendered. This case does not come under any of the exceptions to the rule just above stated. It is a simple action for an alleged unwarranted assault upon the plaintiff by the defendant’s employés. No counterclaim is set up; no circumstances are disclosed bringing this case within any of the exceptions noted in the following cases cited by the respondent. Livermore v. Berdell, 60 How. Prac. 308; Kruger v. Persons, 52 App. Div. 50, 64 N. Y. Supp. 841; Finkelstein v. Meenan, 43 Misc. Rep. 376, 87 N. Y. Supp. 502.

The only circumstance urged by the defendant is that the plaintiff’s case, as disclosed by his own evidence, was a weak one, so weak that it will preclude him from recovering in another action, should he bring another action based upon the same grounds.

There seems to be no such exception made to the rule in the decisions upon the subject. The plaintiff should have been allowed to discontinue the action and pay the costs. The judgment should be reversed, with costs to the appellant.

Judgment reversed, with costs to appellant.  