
    Thomas C. Chapman and Frank Burt, Appellants, v. George Wolf, Respondent, Impleaded with Moritz Neuman and Others, Defendants.
    
      Discontinuance of an action of replevin as to defendants charged with conspiracy, not served with the summons —when a plaintiff has a right thereto.
    
    In an action at law the plaintiffs have a right to discontinue the action as against defendants who have not been served, without costs as to those defendants, unless some rights of the other parties will be affected by the discontinuance, in which case the court may protect the rights of such other defendants by imposing conditions.
    Where the complaint in an action of replevin states but a single cause of action, and, by allegations of conspiracy, seeks to make all of the defendants liable, the discontinuance of the action as to the defendants who have not been served will not injuriously affect the rights of the other defendants.
    Appeal by the plaintiffs, Thomas C. Chapman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1903, denying the plaintiffs’ motion to discontinue the action as against certain of the defendants, and to amend the summons and pleadings by striking therefrom the names of such defendants.
    
      William J. Barr, for the appellants.
    
      Alfred Stechler, for the respondent.
   Ingraham, J.:

This action was brought against George Wolf (respondent), Moritz Neuman, Aaron J. Friedman and John Doe and Richard Roe, the names of “ John Doe” and Richard Roe” being fictitious, their real names being unknown to the plaintiffs. The action was replevin and was commenced by the issuance to the sheriff of the writ on the 12th day of September, 1900. From the affidavit of one of the plaintiff’s attorneys it appeared that the defendants Friedman and John Doe and Richard Roe have never been served with process; nor have they appeared in the action; that no property was taken from either of them; and the plaintiffs, therefore, ask leave to discontinue the action as against the defendants not served and who have not answered. In opposition to this motion there was an affidavit submitted on behalf of the defendant Wolf from which it appears that the action was at issue by the service of the answer of the defendant Wolf on the 31st day of October, 1900, and the service of a reply on the 28th day of November, 1900 ; that the action was placed upon the' calendar for the April term, 1901; that it was reached upon the calendar on the 30th day of September, 1903; and adjourned upon the plaintiffs’ application to the next call; was again reached on the 16th day of October, 1903, and was set down for trial for October 23, 1903.

The action was brought to replevin certain goods alleged to have been sold by the plaintiffs to one Solomon Feldstein and by said Feldstein delivered to the defendant Wolf, the complaint alleging that the defendants conspired with the said Feldstein to cheat and defraud the plaintiffs of said property. The answer of defendant Wolf set up as a separate defense that whatever goods, wares and merchandise the defendant Wolf purchased óf the said Feldstein, mentioned in the complaint, were purchased by Wolf separately and without collusion with the other defendants and without any knowledge on the part of the defendant Wolf of the purchase of any part of the said propérty by either of the other defendants, and upon this allegation the court denied the motion.

These defendants against whom the plaintiffs desire to have the action discontinued have never been served with process and have never appeared in the action, and as long as they remain parties the case is not in a condition to be tried. In order to try and dispose of the case it was necessary either to bring them in or to discontinue the action as to them! No reason appears why the plaintiffs should not have leave to discontinue, except that it is claimed that it would invalidate a defense set up in the answer, which in substance is that ás the defendant Wolf purchased the property sought to' be replevined without collusion with the other defendants, they were not necessary nor proper parties to the action. We think' that in an action at law the plaintiffs have a right to discontinue the action as against the defendants who have not been served, without costs as to those defendants, unless some rights of the other parties to the action would be affected by such discontinuance, in which case the court, by imposing conditions, can protect the rights of the • other defendants. Here the only - rights of' the defendants who appeared and answered that could be affected by this discontinuance would be as to their defense that causes of action have been improperly united. The complaint alleges but one cause of action. It seeks te bring in by allegations of conspiracy several defendants and make them liable for the wrong complained of; but there is but one cause of action, and that is to recover from the defendant Wolf the property of the plaintiffs obtained from them by fraud. Whether or not other persons joined in the fraud cannot affect the liability of one who is charged with committing it; and the fact that the plaintiffs are unable to serve some of the wrongdoers does not in any way affect the right to recover against those whom he has served and who are before the court. It is quite impossible to see any way in-which a discontinuance of the action against those not served with process and who have not appeared can affect any defense which is available in an action of this kind.

I think, therefore, that the order appealed from should be reversed and the motion granted, without costs, with leave to the defendant, respondent, to answer anew if so advised.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JL, concurred.

Order reversed and motion granted, without costs, with leave to defendant, respondent, to answer anew if so advised.  