
    OAKSMITH a. SUTHERLAND.
    
      New York Common Pleas;
    
    
      General Term, November, 1856.
    Right to Discontinue.—Counter-Claim.
    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 for leave to discontinue.
   By the Court.—Brady, J.

—Before the time to reply had expired the plaintiffs tendered the costs which accrued on a discontinuance before issue joined, and gave notice of discontinuance at the same time. Subsequently, and before the period to reply had elapsed, the plaintiffs gave notice of motion for leave to discontinue this action. The reasoning in Cockle a. Underwood (1 Abbotts' Pr. R., 1) does not apply therefore to this case, the counter-claim not having been admitted by the plaintiffs. The notice of discontinuance and the tender of costs were all that the plaintiffs were required to do, if the right to discontinue existed.

I had doubts whether, when a counter-claim was set up, the plaintiff could discontinue without the defendant’s consent, even within the twenty days allowed to reply, notwithstanding the case of Seaboard & Roanoke Railroad Co. a. Ward (1 Abbotts' Pr. R., 46); but on examination of the subject, I am convinced that the plaintiffs have the right absolutely in this case. I cannot understand how the defendant’s rights can be prejudiced, inasmuch as the claim, if assigned, will be subject to the equities existing between assignor and debtor, and the debtor may be examined in his own behalf, if the assignor should be a witness for the assignee.

[We omit some remarks of the court upon a question raised as to whether the costs due upon the discontinuance had been, in fact, paid.]  