
    Philip Fizburg, Appellant v. Charles Ramsey, Respondent.
    (Supreme Court, Appellate Term,
    January, 1906.)
    discontinuance—Eight to discontinue — Counterclaim as affecting right.
    Where a counterclaim is pleaded, the granting of a motion for leave to discontinue the action upon payment of costs is matter of discretion.
    Appeal by the plaintiff from an order of the City Court ■of the city of Hew York, denying plaintiff’s motion for leave to discontinue.
    Henry Fluegelman (Joseph Fischer, of counsel), for appellant.
    Job E. Hedges (Eichard Ely, of counsel), for respondent.
   Blanchard, J.

This is an appeal from an order of the Cüty Court denying a motion by the plaintiff for leave to discontinue. The cause of action alleged in the complaint is substantially the same as that set up in the answer, each party seeking to recover from the other the sum of $1,000 upon two similar promissory notes given by each to the other, to secure the performance of a contract made between them.

The learned court below held, and rightly, that no sufficient reason was given in the moving papers for granting tiie motion. The rule laid down by the Court of Appeals in the Matter of Lasak, 131 N. Y. 624, 627, is decisive. It states: “ In ordinary actions it is not always the absolute-right of a plaintiff to discontinue his action. In all cases, where the defendant becomes an actor and is interested in the continuance and trial of the action, as when he sets up-a counterclaim or sets up a claim to property which is in litigation and asks in his answer for affirmative relief in reference thereto, he may resist the discontinuance of the-action, and then it rests in the discretion of the court whether or not the plaintiff shall be permitted to discontinue it.” The-defendant is equally an actor with the plaintiff in the prosecution of the action and the burden is upon tiie plaintiff to-present the facts which would justify the court in granting, the relief he seeks. He presents no facts whatever, but “ believes that it will be for the best interests of the parties hereto-that this action be discontinuedand, in making the motion,, he appears to have proceeded upon the erroneous theory that he had an absolute right to discontinue. The plaintiff is no-more entitled to have this action discontinued upon payment of costs than would be the defendant. The defendant has-been put to trouble and expense in defending the action and in asserting his counterclaim and he is entitled to have his rights determined therein.

The order appealed from is affirmed, with costs and disbursements.

Scott and Dowling, JJ„ concur.

Order affirmed, with costs and disbursements.  