
    Strafford, }
    Feb. 3, 1953. }
    No. 4178.
    Baxter Woolen Company, Inc. v. Public Service Company of New Hampshire.
    
      
      Charles F. Hartnett (by brief and orally), for the plaintiff.
    
      Sulloway, Jones, Hollis & Godfrey (Mr. Stuart P. French orally), for the defendant.
   Blandin, J.

As recently as in the case of Saykaly v. Manchester, 97 N. H. 4, 5, our court said, “The right of a plaintiff to a voluntary dismissal prior to a hearing on the merits is not open to question in this state.” The defendant in its brief concedes this to be so but argues that because a demurrer had been filed and a hearing held upon it, though not decided, the plaintiff should not be permitted to dismiss except within the Court’s discretion. It also argues that no discretion was exercised but the motion to dismiss was granted as a matter of law. Finally the defendant claims that to dismiss in this situation in any event was an abuse of discretion.

We do not believe the record supports the defendant’s claim that the Court granted the plaintiff’s motion for a voluntary nonsuit as a matter of law. On the contrary it appears to us that his discretion was rightfully exercised and the dismissal was proper. Saykaly v. Manchester, 97 N. H. 4, and authorities cited.

In regard to the matter of costs which the defendant suggests should be allowed in any event, there is nothing to show that this question was raised before the Trial Court, and it follows this issue is not before us. Bullard v. McCarthy, 89 N. H. 158.

Exceptions overruled.

All concurred.  