
    Cockle v. J. A. & H. A. Underwood.
    An action on contract, after an answer has been put in containing a counter-claim, which is admitted by omitting to reply to the answer, cannot be discontinued by the plaintiff, as a matter of course, without leave of the court, on payment of defendant’s costs. The court, in such a case, will not grant leave to discontinue, and thus prevent the defendant from obtaining a judgmentupon the counter-claim, unless special grounds be stated, showing such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendants.
    If the plaintiff has examined the defendants as witnesses in the action, permission to discontinue will ordinarily be on the condition that plaintiff stipulates that defendants may read the deposition, on the trial of any new action to be brought for the same cause.
    At Chambers,
    Sept. 16, 1854.
    The plaintiff moves for leave to discontinue this action on payment of defendants’ costs of the action. The motion. is resisted on the ground that the answer sets up a counter-claim, which is admitted of record, no reply having been put in to the answer..
    The summons was served Hay 13, 1854. The answer to the complaint was served June 10, 1854. After the ■ lapse of twenty days thereafter, the plaintiff examined both defendants as witnesses, pursuant to the Code, and the examination was not concluded until the 8th instant.
    The .complaint in substance is, that the defendants agreed to pay plaintiff one-third of their commission for selling 484 railroad bonds, on plaintiff’s effecting a sale for them; that he did this •; that their commission was $7,725, and the plaintiff’s part was $2,575; that he has received of this sum $755 ; that the balance of $1,820 is due, and for this he prays judgment.
    The answer denies the making of any such agreement, or that the plaintiff effected any sale of any bonds for the defendants, or that the plaintiff has received $755, or any other sum, from defendants as a part of the .pretended commissions.
    The answer, then, “ for a further defence,” “ by way of counter-claim,” alleges that defendants, on the 2d of September, 1853, loaned the plaintiff $60.0, to be repaid on demand; that payment of it has been demanded and not made, and prays that it may be set off against any claim that may be established, and also judgment for it. On the 13th of September the plaintiff served written notice of discontinuance of the action, and tendered $5.12^- as defendants’ costs of the action, which defendants refused to accept. On the same day he served an order on defendants, to show cause, on the 16th inst., why the action should not be discontinued on payment of defendants’ costs of the action. Between the time of the tender, and the time of serving the order, the defendants served notice of trial for the October term of the court.
    
      R. E. Mount, for plaintiff.
    
      Wm. Bliss, for defendants.
   Bosworth, J.

This motion is made on the theory that the plaintiff is entitled, on paying defendants’, costs of the action,, to such an order as he moves for, as a matter of course. Under the old system, a plaintiff could enter a rule, .in the book of common rules, discontinuing the action on payment of costs. Such a rule, in an action at law, could be entered at any time before trial, without an application to the court. (Graham’s Pr. 663-4.)

In the Court of Chancery, the complainant might move to dismiss his own bill, with costs, as a matter of course, at any time before the decree. This is stated in the books of practice to be the rule. (Barb. Ch. Pr. vol. i. 228.)

The practice of the courts, as it existed when the Code took effect, consistent with "the Code itself, is continued, subject to the power of the courts to relax, modify, or alter the same. (Code, § 469.)

The plaintiff insists that the pre-existing practice, in relation to discontinuing actions, is consistent with the provisions of the Code, and that it has not been modified by any rule of the Supreme Court, or of this court. The defendants on the other hand contend, that the practice allowing a plaintiff to dismiss his action before trial, as a matter of course, on payment of costs, is inconsistent with certain provisions of the Code.

§§ 149 and 150 allow a defendant to set up a counter-claim, and recover upon it; if admitted by failing to reply to it, or on proof of it, if it is controverted. (§§ 168 and 274.)

If the action of the plaintiff arises on contract, the defendant may set up as a counter-claim- any cause of action arising on contract, whether the damages are liquidated or not. This could not have been done before the Code. The defendant may notice the action for trial, prove his claim when the cause is reached, or take judgment for it, if admitted by the pleadings. (§ 258.) In this respect the practice, in suits at law, has been altered. The object of the Code seems to be, that a defendant sued on contract and having causes of action against the plaintiff, arising on contract, may litigate them in that action, and have a judgment if entitled to it.

The costs of an independent action are avoided, one claim may be used to satisfy another, to the extent due upon it, the one having the larger claim may have a judgment for the excess, each party is made an actor and may bring the action to trial.

There would seem to be no reason for permitting a plaintiff to discontinue on the mere ground of his disinclination to proceed further in his action, especially when a counter-claim has been set up in the answer, and no reply has been made, and liberty to reply is not asked.

Cases may occur which would justify a court in making such an order. But such cases must present some grounds to justify the inference that the plaintiff would suffer some substantial prejudice if the order was not granted.

On the other hand, it is obvious that the granting of such an order might deprive a defendant of a substantial right. If a counter-claim should be outlawed, at the date of such an order, it would be manifestly unjust to grant it. Other cases readily suggest themselves in which it would be improper to grant such an order as a matter of course.

It is unnecessary to undertake to state any rule by which all-applications may be determined.

It is sufficient to say, that after a counter-claim has been set up, and admitted of record, the court will not allow the plaintiff to discontinue his action, as a matter of course; special grounds must be shown in favor of the application. They must make a case, rendering such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendant. The motion must be denied.

From the order denying the motion the plaintiff appealed to the General Term. The appeal was heard before all the judges, and on the 7th of October, 1854—

Oakley, C. J.,

delivered the opinion of the court, affirming the order on the grounds on which it was made. The chief justice also remarked, that it would be manifestly unjust, in such a case, to permit the action to be discontinued, even when sufficient cause was shown for it, without requiring the plaintiff to stipulate that the defendants might read their examination in evidence, upon the trial of any new action that might be brought. Unless such a stipulation was required, a plaintiff might examine the defendants under the Code, and if the testimony disproved the cause of action, he would at once discontinue it, if a discontinuance was allowed as a matter of course, and bring a new action, if for no other reason, to deprive a defendant of the benefit of the testimony he had been compelled to give. He could read it as a matter of right, on the trial of the action in which it was taken, but not in any other. The order was affirmed, without prejudice to the plaintiff’s right, to move for leave to reply to the counter-claim, and also to discontinue, on affidavits making a case calling for the interposition of the court.

At Chambers, Oct. 28,1854.

The plaintiff, on affidavit, moved for leave to reply to the counter-claim set up in defendants’ answer, and also for leave to discontinue this action, without prejudice to the prosecution, by the defendants, of their counter-claim. The only fact stated in the affidavit, which was not stated in that on which the motion was first made, is, that the plaintiff “ has been advised by his counsel in this action, and verily believes, that it will be for the plaintiff’s interest to discontinue his action.”

Bosworth, J.

When this action was formerly before me, on a similar motion, I decided that a plaintiff in an action on contract, in which an answer setting up a counter-claim had been interposed, and which was admitted of record, would not be allowed to discontinue on payment of costs, unless it was shown that such permission was proper, to prevent the plaintiff from being inequitably prejudiced in his rights or remedies.

It is not averred that the trial and decision of the claim, in this action, will subject the plaintiff to any inconvenience beyond that which will be experienced on trying it, at any other time, nor that there is the least difficulty in obtaining and giving all' the evidence now which he hopes to be ever able to give, or that in fact exists. There is, therefore, no ground shown in support of the motion to discontinue, except that the plaintiff is not inclined to prosecute this action further, although he is not willing to renounce his claim. The motion to discontinue is denied, biit the plaintiff may reply to the counter-claim set up in the defendants’ answer, within ten days, on payment of $7 costs of opposing this motion, but without prejudice to the defendants’ right to bring the action to trial when reached, if it has been noticed for trial, or to notice it for the next term of the court, if not already noticed.

The other justices being consulted, concurred in the decision.  