
    ERIE R. CO. v. BOSTON, C. C. & N. Y. CANAL CO.
    (District Court, D. Massachusetts.
    March 1, 1921.)
    No. 1594.
    Admiralty <§=>39 — Right of libelant .to dismiss suit.
    A libelant may of right dismiss a suit in personam, which has progressed no further than the filing of pleadings, and in which no orders affecting rights have been made.
    In Admiralty. Suit by the Erie Railroad Company against the Boston, Cape Cod & New York Canal Company. On motion by li-belant to discontinue.
    Motion granted.
    Park & Mattison, of New York 'City, and Blodgett, Jones, Burn-ham & Bingham, of Boston, Mass., for libelant.
    Currier, Young & Pillsbury, pf Boston, Mass., for respondent.
   MORTON, District Judge.

It is settled in this circuit that in equity-cases the complainant is entitled to dismiss as of right, unless the litigation has gone so far that substantial rights have accrued to the defendant out of it. Morton Trust Co. v. Keith (C. C.) 150 Fed. 606; Tower v. Stimpson (C. C.) 175 Fed. 130.

The present suit is a libel in personam; the pleadings have been completed, but no further steps have been taken; no interlocutory orders' affecting rights have been made; and no evidence has been taken, either orally or by deposition. No rights have accrued to the defendant by virtue of the litigation.

Unless a different rule prevails for suits in admiralty from those in equity, it is clear that the libelant has the right to dismiss the libel. There does not appear to be any such distinction. In the Confiscation Cases, 7 Wall. 454, 457, 458, 19 L. Ed. 196, it was held that the Attorney General had the right to discontinue admiralty proceedings brought on behalf of tire United States against the objection of the informer, who would be entitled to half the recovery. And the court said :

“Under tbo rules of tbo common law it must be conceded that the prosecuting party may relinquish bis suit at any stage of it, and withdraw from court' at bis option, and without other liability to his adversary than the payment of taxable costs which have accrued up to the time when ho withdraws his suit.
“Precisely the same rule prevails In the admiralty courts, and consequently the libelant has the right at any stage of the cause voluntarily to discontinue the same, and the only penalty to which he can legally be subjected, in the absence of any statutory regulation, except, perhaps, in prize cases, is the payment of the costs of the proceedings.” Clifford, J., 7 Wall. 457, 458, 19 L. Ed. 196.

The libelant may as of right discontinue this suit. If it be a matter of discretion, I should exercise my discretion in the same way.

Motion allowed.  