
    The Washington Glass Co., App’lt, v. Edmund B. Benjamin et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.).
    Discontinuance—When properly disallowed.
    An application by a non-resident plaintiff, made after counterclaims-have been interposed, for leave to discontinue on the ground that it had been discovered that it was necessary to examine a large number of witnesses by commission and to avoid the labor and expense of so doing, is-properly denied by the court, although plaintiff’s attorney agrees to stipulate that another action will be brought to which such counterclaims may be interposed; it not appearing that he has authority to bind the plaintiff' in this manner.
    Appeal from an order denying a motion for leave to discofitinue this action on the payment of costs,'and from an order-denying a motion for a reargument.
    
      James Watson, for app’lt; Seth Sprague Terry, for resp’ts.
   Daniels, J.

The plaintiff is a corporation formed and existing under the laws of the state of Pennsylvania and. there engaged in the manufacture of glassware. By a contract entered. into with the-defendants, the plaintiff agreed to sell and deliver glass manufactured by it as that should be directed by the defendants, for which they were to receive a certain commission or deduction from the price of the sales amounting to the sum of ten per cent. They were to collect the bills and turn over the-money to the- plaintiff after making this deduction.

It is averred in the complaint that they failed to do this to the-extent of upwards of $16,000,-and the object of the action was-the recovery of this excess. By their answer the defendants deny their liability and set up two counterclaims, one consisting of their commissions upon glassware ordered and delivered, amounting to the sum of $1,000, and the other for the sum of $502, for the alleged failure of the plaintiff to deliver goods which had been sold within the time when that should have been done, and by omitting to do which these damages are alleged to have been sustained by the defendants.

An application was made, on notice, to the special term for leave-to discontinue the action upon the payment of the defendants” costs. But that was denied by the court because of these counterclaims contained in the answer, and it is from the order denying; that application that this appeal has been brought.

The affidavit upon which the motion was made is that of one-of the plaintiff’s attorneys in the action. And the prominent reason assigned by him in that affidavit to support the application is, that the plaintiff had shipped goods to a large number of persons nominated by the defendants; that these persons resided in various states, and the attorney was informed by the plaintiff, and believed that they had no means of knowing what part of the shipments, amounting to the sum" of $42,592.41, had been paid to the defendants, and that it would become necessary to examine a large-number of witnesses by commission to obtain proof of those payments. And for that reason and to avoid the labor and expense-of obtaining the evidence in that manner, the application to discontinue was made. But this affidavit, made in this manner-presented no substantial grounds for the success of the application. It depended mainly for its effect by way of sustaining the-motion upon facts unknown to the attorney, and concerning which he had no more than information from the plaintiff. But beyond that, it appeared by the affidavits used in resisting the motion, that as the plaintiff was not a resident of the state, the defendants, would be incapable of instituting an action to recover their demands against it in this state, because of their inability to obtain service-of a summons upon the plaintiff. And in answer to that and in. support of an application for the re-argument of the motion, it. was stated by the attorney that he would stipulate that within ten days from the obtaining of leave to discontinue the plaintiff would institute another action in this court against the defendants, wherein their counterclaims might again be interposed and determined.

The court considered that this affidavit containing the offer-was not sufficient to secure a different disposition of the motion,, and therefore denied the application for a reargument. And in •that denial it appears to be justified, for the reason that the plaintiff" itself would not be bound by this offer of the attorney. Hé did. not appear to possess that control over the demand, or of the-operations of the plaintiff, as would obligate it to commence and. prosecute such an action. If the discontinuance had been allowed, for this reason, there would have been no difficulty in the way of" the plaintiff withdrawing the authority of the. attorney entirely over the litigation, and its refusal to commence the proposed action. And as there was no certainty that the plaintiff would become bound to act otherwise by reason of this offer, it was the-duty of the court to reject it and to dispose of the motion upon the facts previously appearing from the affidavits. And they proved that inconvenience and probable injustice would result to-the defendants by allowing an order to be entered for the discontinuance of the action on the terms proposed by the plaintiff.

_ Applications of this description are addressed wholly to the-discretion of the court. And it is to be determined by the facts, which are made to appear whether that discretion can be justly • and reasonably exercised in favor of the plaintiff in an action of this description. Geenia v. Keah, 66 Barb., 245; Carleton v. Darcy, 75 N. Y., 375; Bowe v. Knickerbocker L. Ins. Co., 27 Hun, 312; Campbell v. Campbell, 54 How., 115; Wilder v. Boynton, 63 Barb., 547.

This discretion in this manner vested in the court was not unwisely exercised in the disposition of the motion.

The case was not one, as the facts’ were presented, where a discontinuance could be ordered without probable injustice to the defendants. And if a new suit is really intended to be brought, all that the plaintiff could accomplish by the action may be attained by a motion to amend the complaint and so extend it as to include all the grounds the plaintiff may have for such an action. Bach of the orders should be affirmed, with ten dollars •costs and the disbursements..

Van Brunt, P. J., and Ingraham, J., concur.  