
    Washington White, Plaintiff, v. Mary White, Individually and as Administratrix, Etc., et al., Defendants.
    (Supreme Court, Erie Special Term,
    February, 1914.)
    Process — defendant not served—plaintiff cannot be compelled to litigate questions when he determines not to proceed further in action.
    Wills—probate of — action to set aside probate — Code Civ. Pro., § 2653a.
    A party named in an action as a defendant and not served with process and against whom no personal demand is made cannot compel the plaintiff to proceed and litigate questions where he determines not to proceed further in the action.
    Where a will was admitted to probate in 1901, and in an action, under section 2653a of the Code of Civil Procedure to set aside the probate, brought in 1912 within two years after plaintiff, a child of testator, had reached his majority, his sister, a nonresident of the state, who was cited on the probate proceeding and for whom a special guardian was appointed was made a party defendant, but no effort was made to obtain jurisdiction over her by the service of process and no personal judgment was asked against her, she has no right to insist that the action proceed; and her motion for an order vacating an order discontinuing the action, duly made and entered, will be denied.
    Motion to vacate an order for the discontinuance of this action, previously granted.
    Robert J. Cooper and Theodore B. Greene, for defendant Densy Hare, in support of motion.
    Richard A. Hall and Nelson J. Palmer, opposed.
   Wheeler, J.

John White died in March, 1901, leaving a last will and testament, which was admitted to probate May 17, 1901. The defendant Densy Hare was a daughter of the testator and of the age of eighteen years at the time of her father’s death. She was duly cited on the probate proceedings, a special guardian appointed for her, and the will duly admitted to probate. Another of the children and heirs-at-law of the testator was Washington White, the plaintiff in this action.

On the 13th of May, 1912, said Washington White began this action to set aside the probate of the will under the provisions of section 2653a of the Code of Civil Procedure, on the alleged ground that the testator was incompetent to make the will in question.

It will be noted that by the provisions of section 2653a an action under this section shall be commenced within two years after the will or codicil has been admitted to probate, but persons within the age of minority, of unsound mind, imprisoned, or absent from the State, may bring such action two years after such disability has been removed.” Consequently Washington White was entitled to bring this action within two years after he reached his majority.

It will also be noted that the defendant Densy Hare became of age in November, 1904, and her time in which- to bring an action to set aside the probate of her father’s will expired in November, 1906. She could not now maintain an independent action of her own for that purpose. She, however, was a necessary party defendant to this action, and was named as such in the summons and complaint. Beyond question, had this action proceeded, and had the plaintiff succeeded in having the will declared null and void, the defendant Densy Hare would have enjoyed and shared the benefit of such a judgment. At the time of the commencement of this action the defendant Densy Hare was a resident of the state of Ohio. No effort was made by the plaintiff to obtain jurisdiction of her by the service of process upon her. On the 22d day of October, 1913, however, the defendant Densy Hare voluntarily appeared by serving on the plaintiff’s attorney a formal notice of appearance through her attorney, Robert J. Cooper. On the same day the notice of appearance was returned as not served within time.

The only other appearance by any of the defendants was made by Nelson J. Palmer, as attorney for the defendant Peter White. On October 23, 1913, the plaintiff’s attorneys and Mr. Palmer, as attorney for the defendant Peter White, signed a stipulation for a discontinuance of the action; and npon the presentation of that stipulation an order of the Special Term of this court was entered dismissing the action.

The defendant Densy Hare now moves to vacate said order, and contends that sire has the right to insist that the action proceed, and was entitled to notice of the motion for an order of discontinuance.

We need not discuss at this time the question as to whether the defendant Densy Hare had the right to voluntarily appear in this action without being summoned to do so by the plaintiff. If a personal judgment had been demanded against the defendant Densy Hare then, under the cases, she would have had the right to have voluntarily appeared, having been named as a party defendant. McLoughlin v. Bieber, 26 Misc. Rep. 144; Duer v. Fox, 27 id. 677; Higgins v. Freeman, 2 Duer, 650; Wellington v. Classon, 9 Abb. Pr. 175.

Here, however, no personal judgment was asked.

The affidavits disclose that, for a long time prior to her appearance, it had been arranged between the plaintiff and the only other party who had appeared that this action should be discontinued.

It would be going a long way to hold that a party named in an action as defendant and not served can compel the plaintiff to proceed and litigate questions where he had determined not to proceed further in the action. He would thus he rendering himself liable for expenses incident to its prosecution against his wishes, and in many cases against his interest. We know of no case going to that extent where no personal demand is made against a party. It is clearly against the repeated decisions of the courts of this state, holding that the plaintiff has the right to discontinue actions upon his own motion, and this is an absolute right unless there are some peculiar equities or rights of the defendant which would render such an order of discontinuance improper. Matter of Butler, 101 N. Y. 307; Janssen v. Whitlock, 58 App. Div. 367; Schlegel v. Roman Catholic Church, 124 id. 502; Telephone Co. of America v. Douthitt, 115 id. 362 Walsh v. Walsh, 33 id. 579.

A motion to discontinue is sometimes denied when the defendant has interposed some defense by way of counterclaim, as in actions for divorce when the defendant seeks affirmative relief by counter-charges. Campbell v. Campbell, 12 Hun, 636; Winans v. Winans, 124 N. Y. 140; Jermyn v. Searing, 139 App. Div. 116.

In this case, while the defendant Densy Hare would reap the benefit of a successful prosecution of this action to set aside the probate of her father’s will, she is in no position to ask on her own behalf affirmatively that the probate be vacated. Her time to bring such an action, or to ask for any such relief, expired more than seven years prior to the commencement of this action. She stands in no position to demand that the action be prosecuted for her benefit. The fact that the plaintiff acts within the statutory time in his own case cannot operate to revive or restore the statutory time in her case. We can conceive of no principle of law or equity which can be invoked to compel the plaintiff to litigate for the benefit of this defendant when she herself has slept on her rights until the statutory time in which she might seek relief on her own account has long since expired.

Assuming, however, she had the right to appear and to be heard on the motion to discontinue, we may treat this motion for all purposes as giving her her day in court, and, if satisfied that the plaintiff was entitled to discontinue, may make such order as the rights and equities of the parties require. I am satisfied that, if the application on which the order asked to be vacated had been upon notice to the attorneys for the defendant Densy Hare, the court would have granted it even against their opposition.

For these reasons we see no reason for vacating said order át this time.

The motion is, therefore, denied, without costs.

Motion denied, without costs.  