
    DAVID C. CARLETON, Plaintiff and Appellant, v. THOMAS DARCY and THE MAYOR, &c. OF NEW YORK, Defendants and Respondents.
    DISCONTINUANCE OE ACTION. —EJECTMENT.
    The plaintiff’s right to discontinue on payment of costs terminates when the action passes into judgment, for the defendant can then claim a right to the adjudication even if the same was wholly or partially unfavorable to him, and his right does not depend upon the judgment having been actually entered of record. It was enough that a point had been reached which made the action ready for judgment.
    Leave to discontinue was never granted after a peremptory rule for judgment or demurrer.
    After a special verdict, the plaintiff might discontinue by leave, as a matter of great favor, because the special verdict was not complete and final.
    Leave to discontinue after a general verdict was never granted (2 Williams Saunders, 73).
    In the case at bar, an action of ejectment, the judgment was entered, and execution issued, and plaintiff put in possession of the premises by the sheriff. Subsequently it was vacated, and another defendant added, but the plaintiff was allowed to keep possession of the premises under the execution until a judgment should be rendered in defendants’ favor, and after answer of defendants denying plaintiff’s right to possession of the premises, and claiming ownership in fee in the same, the plaintiff claims the right to discontinue on payment of costs without a restoration of the possession of the property.
    
      Decided February 4, 1878.
    Manifestly the plaintiff has no right in this condition of things to discontinue the action to enable him to bring a new action, or to compel the defendants to bring an action to recover the possession of the property now in the plaintiff under the judgment.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    Appeal from an order, denying to plaintiff leave to discontinue upon payment of costs.
    The action was in ejectment, and begun against Darcy alone. He failed to answer. The plaintiff entered judgment by default and issued execution to the sheriff, who delivered to him possession of the premises. On motion, the judgment was vacated. The mayor, &c., were joined as defendants, and both defendants were allowed to defend. The plaintiff was allowed to remain in possession. Answers were served denying plaintiff’s title, &c. Thereafter, plaintiff moved to discontinue upon payment of costs. This motion was denied, and the order then entered appealed from.
    
      H. O. Southworth and T. B. Clarkson, of counsel, for appellant, urged :
    —I. This is an application to discontinue a suit which plaintiff has a right to make and obtain ex parte, but defendant ■ is heard by consent. The plaintiff has an undeniable right to discontinue his suit at any time before judgment (1 Abb. 46; 18 Barb. 595; 13 How. 258; 7 Abb. N. S. 37; 25 How. 356; 10 N. Y. 500; 11 Hun, 286; 10 Id. 120). As to right of appeal: 58 H. Y. 215. Ho case can be found where plaintiff has been denied the right to discontinue. Ho fact can be plainer than that a plaintiff cannot be compelled to prosecute a suit. This.is the Code, and every decision under it. Heither the legislature nor court can compel a pláintiff to proceed in a cause. The court has never exercised any power over that right except to require a stipulation allowing defendant any right he has obtained to testimony, or on a counterclaim. This we have already offered to do, and tendered the stipulation and the costs, whatever they were, and are now willing to pay them. We don’t want to be at the expense of several hundred dollars to carry on a lawsuit for their benefit, that they may see how much of a title they can make out. They say we are left in possession. Very well, we were in possession when they broke in, only thirty days before the action was commenced. They were notified of our rights, warned repeatedly not to trespass upon the property. Darcy entered, defying our rights, when we were in possession. Our judgment being opened and suit discontinued, there is nothing to prejudice an action of ejectment on their part. The shanty on the lot did not cost over $30 ; we have expended $300 on it, after obtaining judgment and supposed the case ended. Why should the city oppose the discontinuance ? If they have a title, let them proceed in their own right. The law allowing defaults to be opened does not affect the plaintiff’s right to discontinue. He consents that the judgment remain vacated.
    
      Wm. C. Whitney, attorney, and T. B. Clarkson, of counsel, for respondents, urged :
    —I. A plaintiff is not entitled, as matter of right, to discontinue his suit on payment of costs to the defendant. The court may in a proper case impose other or further terms, or both. The defendants claim that the true rule is that stated by Mr. Justice E. Darwin Smith, in his opinion in Young v. Bush, 36 How. Pr. 240-242. And this case was followed in a case at special term, which was affirmed on appeal to the general term of the fourth department (Wilder v. Boynton, 63 Barb., 547. See also De Barante v. Deyermand, 41 N. Y. 355; Cockle v. Underwood, 3 Duer, 676, 678, 680; and Leslie v. Leslie, 10 Abb. Pr. N. S. 64-74). In a case in this court (above referred to) when defendant had set up a counter-claim which was not replied to, this court refused to permit plaintiff to discontinue on payment of the costs, on the ground that plaintiff showed no special reason for it (Cockle v. Underwood, 3 Duer, 676. See also, Livermore v. Bainbridge, 43 How. Pr. 272-274). The court of common pleas has imposed the payment of an allowance, in addition to the taxable costs, as a condition of permitting plaintiff to discontinue (Tubbs v. Hall, 12 Abb. Pr. N. S. 237). Where defendant had set up a counter-claim, and the case was partly tried, and plaintiff applied for leave to discontinue, and it appeared that an action on the counterclaim was barred by the statute of limitations, leave to discontinue was refused (Van Allen v. Schermerhorn, 14 How. Pr. 287. See Geenia v. Keah, 66 Barb. 245). In an action of claim and delivery the question came up whether “the plaintiff can discontinue on payment of costs merely, where the property has been delivered to the plaintiff, and the defendant has put in an answer entitling him to a return.” And if was decided that he could not (Wilson v. Wheeler, 6 How. Pr. 49).
    II. If the defendant is not entitled, as matter of right, to discontinue on payment of costs, then this order refusing leave so to do is not appealable (Code of Civil Procedure).
    
    III. It would have been unjust and inequitable to have allowed the plaintiff to discontinue without returning the property (Wilson v. Wheeler, 6 How. Pr. 49-51). The court will bear in mind that, at the time this suit was commenced, the defendants were in possession of the lot, the object of this litigation, and that the plaintiff has now obtained the possession of it. He has obtained all that he could obtain had the litigation been continued until the court had passed upon the rights of all the parties before it. And now, when we have come in and denied his right to the lot, and claim to be its owners and entitled to possession, and ask to have his right and our right passed upon by the court before which he has brought ns, and in a suit which he has instituted, and thereby asserted his willingness to have his right tried, he asks to be allowed to go, our right to the property yet untried, his right to the property, though denied by us, yet untried, but he to retain the property, and we to be driven to a new suit to obtain it.
    IY. To have granted the motion would have been to deprive the statute under which we were let in to defend of its effect,—to make it useless and ineffectual ; in effect to repeal it so far as this action is concerned. The statute provides as follows : “§34 [38]. Every judgment in ejectment rendered by default, shall, from and after three years from the time of docketing the same, be conclusive upon the defendant, and upon all persons claiming from or through him by title accruing after the commencement of the action. But within five years after the docketing of such judgment, on the application of the defendant, his heirs or assigns, and upon payment of all costs and damages recovered thereby, the court may vacate such judgment and grant a new trial, if such court shall be satisfied that justice will be promoted, and the rights of the parties more satisfactorily ascertained and established ’ ’ (1 R. S. [6th ed.], p. 576, § 34 [38]; 2 Id. [Edm. ed.] p. 318, § 38). “§ 87 [41]. If the plaintiff shall have taken possession of the premises by virtue of any recovery in ejectment, such possession shall not in any way be affected by the vacating of any judgment, as herein provided ; and if the defendant recover in any new trial hereby authorized, he shall be entitled to a writ of possession in the same manner as if he was plaintiff” (3 R. S. [6th ed.] p. 577, § 37 [41]; 2 Id. [Edm. ed.] p.. 319, § 41). The defendant, Darcy, having suffered a default, applied to the court, and the court, having been satisfied that justice would be promoted, has granted him a trial pursuant to the above quoted statute (§ 34), and allowed his landlords to come in with him as defendants, and, pursuant to the statute (§ 37), the property must remain in the plaintiff’s possession until that trial. If, now, the plaintiff may discontinue before the trial so granted, then we, for whose benefit the statute wa,s made, are deprived of its benefit; we cannot have that trial which the court, under the authority of the statute, and for the purpose of promoting justice, has granted to us. So far as we are concerned, it will be ineffective and void. And this will be the effect in every case where a plaintiff has obtained judgment in ejectment, whether on a trial or on a default.
   By the Court.—Sedgwick, J.

—The plaintiff’s right to discontinue on payment of costs was gone if the action had passed into judgment. The defendant might then claim a right to the adjudication, even if it were wholly or partly unfavorable to him, although it cannot be supposed that a plaintiff would wish to discontinue an action, in which there is a judgment wholly favorable to his demands. The defendants’ right did not depend upon the judgment having been actually entered of record. It was enough that a point had been reached which made the action ready for the entering of.a judgment.

Leave to discontinue was never granted after a peremptory rule for judgment on demurrer, while, after demurrer argued and allowed, a discontinuance on payment of costs was allowed, if there were a mistake by the plaintiff in pleading. Afterwards the mistake was relieved by allowing the plaintiff to amend on payment of costs. After a special verdict the plaintiff might discontinue by leave, because it was not complete and final, as a matter of great favor, however. Leave to discontinue was never granted after a general veidict (2 Wms. Saunders, 73). A case there cited (Stephens v. Etterick, 1 Show. 63), was in covenant, and a writ of inquiry had been awarded, executed, returned, but not filed. Counsel for plaintiff moved for discontinuance, and argued that the judgment was but interlocutory for the award of inquiry, and nothing was reduced to certainty. The court held it was not different from the case of a verdict where a plaintiff ■could not discontinue, and that there could be no discontinuance without consent.

In the case at bar, though the judgment was vacated, the plaintiff was allowed to keep possession, taken under the execution, until a judgment should be had in defendant’s favor. Manifestly the plaintiff has no right to discontinué to enable him to bring a new action, in this condition of things, or to compel the defendant to bring the action. There was an adjudication in effect in favor of defendant, that he was entitled to have this action to proceed to judgment. By reason of the action, the plaintiff has obtained possession, not as of absolute right, but of qualified right, the qualification being in defendant’s favor. It is impossible that he should destroy this qualification by discontinuing the action, without relinquishing possession. I think the learned judge committed no error, by not allowing a discontinuance on condition of relinquishing possession and payment of costs, inasmuch as the plaintiff was not willing to perform siich a condition.

The learned counsel for respondents claim that the vacating of the judgment was under the statute that relates to new trials in ejectment after judgment for plaintiff by default (2 R. S. 309, § 38, and p. 310, § 41; 2 Edm. 318, 319). Section 38 is, that such a judgment may be within five years vacated upon terms, if justice require. Section 41 is, if the plaintiff have taken possession, by virtue of the recovery, such possession shall not be affected by the vacating of the judgment; but if the defendant recover in any new trial authorized by the statute, he shall be entitled to a writ of possession in the same manner as if he were plaintiff. In this case, if the plaintiff wishes to retain his possession, he cannot, by discontinuance, keep the defendants out of their right, to continue the action, to the end, if possible, of obtaining a writ of possession.

The order appealed from should be affirmed with costs of $10, and disbursements.

Curtis, Ch. J., and Freedman, J., concurred.  