
    SEABOARD AND ROANOAKE R. R. CO. a. WARD.
    
      Supreme Court, First District; General Term,
    
    
      November, 1854.
    Eight to Discontinue.—Counter-claim.
    Under the former practice the plaintiff had an absolute right to discontinue on payment of costs at any time before judgment or decree, or the submission of the cause to the jury.
    This right has not been abrogated by the Code.
    The fact that defendant has answered, setting up a counter-claim, does not preclude the plaintiff from discontinuing before reply or demurrer or expiration of the time to reply.
    Motion to set aside order of discontinuance.
    The defendant having answered the complaint in this cause setting up a counter-claim, the plaintiff éntered an exporte order of discontinuance; which the defendant moved at special term to set aside. The motion was denied pro forma for the purpose of presenting the question involved, to the general term in the first instance.
    
      Wm. O. Noyes, for plaintiffs.
    
      P. T WoooFywry and O. P. Kvrldcmrl, for defendant.
    The counter-claim of the defendant under the Code is in fact a cross-action by defendant against plaintiff, and possesses every feabwre and emery right of an original action. It is pleaded exactly like matter in a complaint, and issue is joined upon it in precisely the same way. The defendant is an actor in bringing the counter-claim to trial. And if the counterclaim be in fact a cross-action, possessing every feature and every right of an original action, then the plaintiff cannot of his own motion discontinue what is in fact the defendant’s suit against him. The counter-claim is analogous to the cross-bill in equity; and the dismission of the original suit in equity never worked an abatement or dismission as to the cross-bill. (2 Barb. Ch. Pr. 129. Wickliffe v. Clay, 1 Dana, 589. S. C. 2, ib. 68.)
   Mitchell, J.

The plaintiffs, a foreign corporation, commenced this action against the defendant, for moneys received as them agent. He set np a counter-claim arising out of transactions prior to the agency, and for which, if he has any claim, he can still commence an action. Before the time for replying, the plaintiffs entered an ex-parte order, dismissing the action on payment of costs. The defendant moved to vacate that order, and the judge at special term denied the motion. The defendants appeal.

The absolute right of a plaintiff to discontinue his action on payment of costs, at any time before judgment or decree, or before the case was submitted to a jury, has been the law both of this country and of England, from the earliest period to this day, unless the Code has taken away that right. It was allowed in chancery, when the cause was called on for hearing, although the defendants were ready to argue the cause on its merits, and strongly opposed the dismissal. Curtiss v. Loyd, 4 Mylne & K., 194.

Chancellor Walworth said, (Cummins v. Bennett, 8 Paige, 81,) that it is a matter of course to permit a complainant to dismiss his bill at any time before the interlocutory or final decree has been made in the cause, upon payment of costs. It was conceded by the counsel on both sides, that this right continued even if a cross-bill were filed; but that then it did not carry the cross-bill with it. But the cross-bill was the bill of the defendant; it remained in court until he voluntarily dismissed it, or it was dismissed by his default, or disposed of by the judgment of the court. It was also conceded that the right existed in replevin, where the defendant is an actor and may notice the cause as well as the plaintiff; and continued in actions of contract after the law allowed a set off to the defendant, and his right to recover from the plaintiff any excess of the set-off beyond the plaintiff’s claim. In replevin the effect of the discontinuance was, a judgment for the return of the property replevied, but that was only to carry out a necessary effect of the abandonment of the suit, viz.: that property acquired by the commencement of the suit should be returned when the suit was voluntarily abandoned, and this abandonment showed that the plaintiff had no right to the property, at least in that action; it could be obtained only by the institution of the suit, and the foundation for retaining it failed when the suit failed.

Doubt is expressed, in Wilson v. Wheeler (6 How. Pr. R. 51, 52), whether on a discontinuance by the plaintiff, in replevin, it would be part of the judgment that the goods should be returned; but it is there admitted that “ the old cases under the English Statutes evidently favored a return,” (p. 51), and the section of the Revised Statutes there quoted, (2 Rev. Stats. 530, § 53,) is broad enough to include a discontinuance whether on the motion of the plaintiff or defendant. It is:—“ if the property specified in the suit have been delivered to the plaintiff, and the defendant recover judgment by discontinuance or nonsuit, such judgment shall be, that the defendant have return of the goods, &c.” The defendant recovers the judgment, although the order is made on the plaintiff’s motion.

The right of the plaintiff to discontinue his action having been sustained through all the changes of the law until the adoption of the Code, it must require clear and unequivocal language to take it away. It is not to be taken away by implication, unless the implication be an absolutely necessary consequence of some of the new enactments. The parts of the Code referred to, are § 274,—allowing the court to grant to the defendant any affirmative relief to which he may be entitled,— § 256,—allowing either party after issue to give notice of trial,—§ 258,—allowing either party noticing the cause for trial to proceed with the case and take a dismissal of the complaint, or a verdict or judgment as the case may require,— § 149,—allowing the defendant in his answer to set up any new matter constituting a defence or counter-claim,—§ 153,—allow-ing the plaintiff to reply to an answer setting up a counterclaim,—§ 154,—allowing the defendant when the plaintiff fails to reply or demur within the time prescribed by law, to move for such judgment as he is entitled, and if the case require it to have a writ of inquiry of damages,—and § 168,—declaring that new matter in the answer', set up as a counter-claim is to be deemed as admitted if it is not controverted.

The sections allowing a defendant after issue joined to notice the cause for trial, and after noticing it, to proceed with the case and take such judgment as the case requires, apply to all defendants, whether they set up a counter-claim or not. Yet it is not denied that the plaintiff may discontinue except when the counter-claim is set up. Those sections do not therefore help the defendant’s position; they apply, too, only after issue is joined, not to this case, when the time to reply has not yet expired. Sections 149 and 153 only allow the counter-claim to be set' up as a defence and then permit the plaintiff to reply to it. They cannot effect this question. Section 154 allows the defendants, when the plaintiff fails to reply or demur to a counter-claim, to move for such judgment as he is entitled to. That does apply, and it does give a defendant an absolute right in a certain event, to have an affirmative judgment in his favor, but it is not until these events occur, that it gives any such right. It gives the right and limits it, and gives it only when-the plaintiff fails to reply or demur within the time prescribed by law. Before that failure on the part of the plaintiff, he retains all the rights which he had before. After that, he loses the right to discontinue, except with the special leave of the court. If the plaintiff replies to the counter-claim, and his reply be false, or he cannot sustain it, the defendant ought not to lose any right which he would have had if the false or unsustainable reply had not been put in; and therefore in case of a counter-claim after issue joined, the defendant noticing the cause for trial should, (as section 258 and 274 allow) have his affirmative relief, and such judgment as the case may require.

The notes of the codifiers to their report of 1850, under chapter 4 of title 7, as to “ the answer,” (p. 267, 271) were referred to, to show that they intended that the plaintiff should not have leave to discontinue. Such no doubt was the intention of those gentlemen in certain cases, as one of them present at the argument suggested, but as he also showed they expressed that intention not in the chapter as to answers, which was adopted by the legislature, but in chapter 1 of title 8, relating to judgments in general, which chapter was adopted in part by the legislature, but with the exclusion of the section referred to. This shows first that the codifiers deemed an express provision necessary to cut off the general right of the jfiaintiff to dismiss his own action, and that they ■did not mean to cut it off by implication, and next that the legislature having the subject before them, did not choose to alter the old law. In the chapter last referred to, § 748 corresponds with § 245 of the Code, sections 749 and 750 with 274 of the .Code, and section 751 with section 275 of the Code. Then follows section 752, which was not adopted and "which proposed to abolish all other modes of dismissing an action, except those therein specified; one of them was by the plaintiff himself at any time before trial, if a provisional remedy has not been allowed, or counter-claim made.”

It would seem to be clear that the legislature did not intend to abolish this ancient and firmly established right of a plaintiff, merely because a counter-claim was made, and that the modifiers did not mean so, unless their express provision for that purpose should be adopted. By clear implication they have abolished it when the plaintiff fails to reply or demur to the counter-claim, or to appear at the trial, but then only.” .

Whether under the general power of the court to control its process- and the orders made by it or in its name, it may not when the defendant will otherwise lose his redress, vacate an order of dismissal entered by the plaintiff, need not be examined. This case presents no such circumstances.

The case of Cockle against Underwood, decided by Judge Bosworth in the Superior Court, has been submitted to us since the argument of this cause. In that case the plaintiff had failed to reply to the counter-claim, within the time prescribed by law, and then we agree that the plaintiff cannot dismiss his complaint without special leave.

The order appealed from is affirmed, with costs. 
      
       Ante p. 1.
     