
    George W. Simers, Jr., Plaintiff, v. Great Eastern Clay Products Company, William C. Kimball and Lincoln Trust Company, Defendants, Great Eastern Clay Products Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    November, 1913.)
    Motions and orders — when withdrawn — motion to vacate order of substitution.
    A motion may be withdrawn at any time before it has been finally submitted, upon tender of costs.
    The court having ascertained upon the hearing of a motion to vacate an order for the substitution of attorneys, or upon an application denying said motion, that it had been withdrawn should vacate the order for substitution, and an order denying the motion to vacate will be reversed and the motion granted.
    Appeal by defendant Great Eastern Clay Products Company from an order of the City Court of the city of New York, denying its motion to vacate an order of substitution.
    Bruce E. Duncan, for appellant.
    Liston L. Lewis (John Vernou Bouvier, Jr., and W. Montague Geer, Jr., of counsel), for respondent.
   Whitaker, J.

The order appealed from denied the application of the defendant to vacate an order in the same action made by the same justice, dated February 24, 1913, and entered March 11, 1913.

Prior to February 3, 1913, the above entitled action was pending in the City Court. Liston L. Lewis, appeared as attorney for defendant Great Eastern ClaProducts Company. About February 3, 1913, before issue was joined, the defendant petitioned the court to substitute Bruce R. Duncan as its attorney in place of said Liston L. Lewis. The motion was returnable on February 14, 1913. On that day Mr. Lewis served on Mr. Duncan three aEdavits in opposition. These aEdavits it is claimed showed reasons why the motion to substitute Duncan for Lewis should be denied. The motion was adjourned from time to time in order to enable Mr. Duncan to obtain opposing aEdavits, which aEdavits Mr. Duncan was not able to obtain within the limited time before the hearing of the motion which had been set for February twenty-fourth. On that day the parties appeared before the court. Mr. Duncan stated to the court that he was not ready because of his inability to procure certain aEdavits in time, but that he would probably receive them the latter part of the week. The court thereupon stated that Mr. Duncan might serve his replying aEdavits on Mr. Lewis on or before February twenty-eighth and that they should be submitted to the court on March 3,1913. When the motion was called on February twenty-fourth, counsel for Mr. Lewis made some argument to the court. Ho papers however were submitted at that time nor was any argument made by Mr. Duncan in support of the motion and in reply to Mr. Lewis’ counsel. The court ordered that the matter should be finally submitted to it on March third. Prior to March first, Mr. Duncan became aware that he could not get the affidavits he required in time for March third as the proposed affiants resided in Ohio." Mr. Lewis refused to give him additional time and on March first Mr. Duncan served a written notice upon Mr. Lewis that the motion was withdrawn and tendered him ten dollars motion costs. Notwithstanding this notice and tender of which the court had notice, the court proceeded on March third with the hearing. Mr. Lewis submitted his affidavits and papers in opposition to the motion including two additional affidavits copies of which were never served upon Mr. Duncan. Mr. Duncan did not appear nor did he submit any papers. The court paid no attention to the withdrawal of the motion, heard Mr. Lewis and denied the motion to substitute Mr. Duncan as attorney for the said defendant in place of Mr. Lewis.

Thereafter Mr. Duncan on behalf of the said defendant made a motion to vacate the order denying the motion to substitute Mr. Duncan as attorney in place of Mr. Lewis. This motion was based upon the withdrawal of the original motion and was made upon proper notice and was heard by the same justice and was denied. The said defendant and Mr. Duncan are now before this court upon the appeal from the order denying the motion to vacate.

The only question presented by this appeal is the right of Mr. Duncan to withdraw the motion for substitution in the manner in which he attempted to withdraw it. It may be conceded, I think, that a plaintiff cannot effectually discontinue an action without an order of the court. This has been settled by authority and no discussion is necessary. The respondent argues that the withdrawal of "a motion-involves the same principles as the discontinuance of an action and that the objections to the discontinuance of an action without an order of the court apply with eqtial force to the "withdrawal of a motion. We disagree with the respondent’s contention. In very many cases where an action has been begun reciprocal rights and remedies of the parties arise, especially where affirmative defenses or counterclaims are set up. In all such cases the defendant becomes to all intents and purposes a plaintiff. Of course in such cases it would be inequitable to allow the plaintiff to arbitrarily discontinue as a matter of right upon his own motion. It is true there are also a number of actions where the defendant can in no way be hurt by an arbitrary right of plaintiff ‘to discontinue. There are also actions in which the defendant may be justly entitled to disprove the allegations of plaintiff, notwithstanding that his property or pecuniary interests might be helped rather than hurt by such discontinuance. There being such a variety of reciprocal rights between litigants in an action, some of the rights affecting the property and some the persons of the parties, the courts have recognized it as a much safer and more just rule to require its order to discontinue actions in all cases rather than leave it in the power of plaintiff. This court can see no legal objection whatever to the withdrawal of a motion at any time before it has been finally submitted. Such withdrawal simply leaves the person opposed to the motion in precisely the same position as if the motion had not been made. It is certainly optional with a litigant whether or not he will make a motion and, having once made it, this court can see no reason or justice in compelling him to continue it if he should become convinced that to continue it would be unwise or inexpedient. If it be necessary to get leave of the court to withdraw a motion, it follows as a necessary corollary that the court could decline to give such permission, the result of which would be to compel a litigant to ask and perhaps be compelled to receive something he does not want. If the motion should involve something which the litigant against whom it is made deems beneficial to him or should such litigant ask affirmative relief in the same motion, it is possible a different rule might apply.

It seems to the court that the only right that the litigant has to object to the withdrawal of a motion is one of costs, and in the case under consideration costs were tendered.

The case of Hoover v. Rochester Printing Co., 2 App. Div. 11, is authority for the court’s conclusion that Mr. Duncan had the legal right to withdraw the motion upon the payment or tender of costs. Having arrived at this conclusion it necessarily follows that the court below after having ascertained, either upon the original motion or upon the application to set aside the order denying the original motion, that the original motion had been withdrawn, should have granted the application to set aside the order.

Order reversed, with ten dollars costs and disbursements, and the motion to vacate the order of March 11, 1913, granted upon payment of ten dollars costs; costs of one party to be offset against those of the other.

Lehman and Page, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  