
    Jacob Rothenberg, Appellant, v. Samuel Filarsky et. al., Respondents.
    (Supreme Court, Appellate Term,
    February, 1900.)
    Municipal Court of the City of Hew York — Bight to discontinue — When not waived.
    At any time before an action, in the Municipal Court of the city of New York, is finally submitted, the plaintiff has an absolute right to discontinue.
    This right is not waived because his attorney, after moving to discontinue at the close of the testimony of one of the defendants, subsequently cross-examined another witness sworn for the defendants, and did not renew his motion after the proofs were all in.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, from a judgment rendered in favor of the defendants upon a trial had before the court, without a jury.
    The nature of the action, and the facts, so far as they are material, are stated in the opinion.
    A. H. Sarasohn, for appellant.
    John Bogart, for respondents.
   Giegerich, J.

The action is to recover damages for the conversion of personal property. The pleadings are in writing. The defendants answered separately, but the answers are similar in all respects, each denying every allegation of the complaint.

At the trial after the plaintiff had rested and the testimony of the defendant, Samuel Filarsky, had been taken in behalf of the defendants, the plaintiff moved to discontinue the action, which application was refused upon the defendants’ objection and the plaintiff excepted. Under the authorities, such refusal constituted reversible error. Section 1382 of the Consolidation Act (Laws of 1882, chap. 410), which applies to the Municipal Court of the city of New York (see Langbein Munic. Ct. Pr. 346), provides, among other things, that judgment that the action be -dismissed, with costs, without prejudice to a new action, shall be rendered where the plaintiff voluntarily discontinues the action before it is finally submitted. Such provision was compiled from section 45 of the District Court Act (Laws of 1857, chap. 344). In Bidwell v. Weeks, 2 Hilt. 106, which arose under the last-mentioned enactment, the court, speaking through Hilton, J., said (p. 107): “ The plaintiff, at any time before the action was finally submitted, had a right to discontinue it; and, in such a case, it was the duty of the justice to give judgment dismissing the action with costs, and without prejudice to a new action.” The court in Goldberg v. Victor, 26 Misc. Rep. 728, Freedman, P. J., giving the opinion, came to the same conclusion respecting the provisions first above cited by holding that the refusal of the plaintiff’s request for a discontinuance of the action constituted error, and that “ such a discontinuance can be had at any time before the case is finally submitted.”

. It is urged, however, that the plaintiff waived the right to discontinue the action, by cross-examining one of the two' witnesses called subsequent to the refusal of the application therefor; and by the submission of the case upon the close of the testimony without renewing such motion. Great stress is laid upon that portion of the opinion in the last-cited case, which reads: “ In the case at bar, the plaintiff sought to avail himself of his statutory right and he subsequently did nothing from which it can be said that he waived the right claimed by him.” There an application to discontinue the action was made by the plaintiff near the close of the testimony and while the defendants’ attorney’s examination-in-chief was unfinished. Hpon the defendants’ objection such leave was refused, and the plaintiff noted an exception. The wit-mess then proceeded with his testimony, but he was not cross-examined, nor were any further proceedings taken by the plaintiff, except that he asked leave to introduce further testimony, which request was immediately withdrawn when granted, and the testimony being closed, judgment was rendered for the defendant. In the case at bar the plaintiff did not offer any additional proof after the refusal of such application, but, it is true, as claimed by the defendants, he did cross-examine one of the witnesses subsequently called by them. There was nothing, to my mind, in the conduct of the plaintiff, or his counsel, subsequent to the denial of the motion to discontinue the action, from which a waiver of the exception taken to such ruling might be fairly implied. Certainly the cross-examination of witnesses called by the other side cannot be justly claimed to have that effect. It was the duty of the counsel for the plaintiff to protect his client’s interests from tho beginning to the end of the trial, but in order to do so, he was not required to abandon the prosecution of the case, and to depart from the courtroom the moment leave to discontinue the action was refused. The orderly disposition of business to say nothing of the respect owed to the court, and a due sense of propriety must obviously discourage such conduct. Moreover, the waiver, by implication, of an exception taken during the progress of a trial is not favored by the courts of this State; thus, if the adverse party draws out illegal evidence upon a direct-examination or upon cross-examination, under objection and exception duly taken, the exception will not be waived by re-examining or cross-examining the witnesses as to the same matter (Baylies Tr. Pr. [2d ed.], p. 292); nor does a party waive his objection and exception to the admission of incompetent evidence by attempting to disprove the matters testified to, or to prove facts inconsistent with them. Martin v. New York, N. H. & H. R. R. Co., 103 N. Y. 626; Bay-lies Tr. Pr. (2d. ed.) 292. The failure to renew the application when the proofs were all in, did not, in my opinion, operate as an abandonment or waiver of such motion, since in no aspect was the right to discontinue dependent upon the condition of the proof itself, nor was the matter one calling for the exercise of discretion by the court upon the record, whether complete or incomplete.

It follows that the judgment must be reversed. °

Beekman, P. J., and O’Gorman, J., concur.

Judgment reversed and new trial ordered, with costs to abide event.  