
    ERASTUS D. BENEDICT, Appellant, v. COURTLANDT P. DIXON, et al., Respondents.
    
      Removal to United States court—power of State court thereafter to modify order of discontinuance previously entered as to certain defendants.
    
    Where an action in a State court is discontinued as to certain defendants, and is thereafter removed, as to the remaining defendants only, to a Unites States court, the State court in which the action was originally brought, and in which the order of discontinuance was entered, has power and jurisdiction to modify such order, by a provision reserving the rights of the defendants, as to whom the action was discontinued, on an undertaking given by plaintiffs on obtaining an injunction.
    Before Speir and. Freedman, JJ.
    
      Decided June 6, 1881,
    Appeal by plaintiff from order, made on motion of defendants Dixon and Learned, modifying order of discontinuance.
    The facts appear in the opinion.
    
      Lawrence & WaeJmer, for appellant.
    
      Albert BticJcney, for respondents.
   By the Court.—Freddman, J.

This action was originally brought by the plaintiff against Dixon, Learned, Knox, Williams and Kernochan as defendants. Knox did not appear. The other defendants did, but before service of any answer or demurrer, the plaintiff discontinued the action as to Dixon, Learned and Knox, and an order of discontinuance was entered to that effect. Thereafter, the action, then standing against only Williams and Kernochan as defendants, was, on plaintiff’s motion, duly removed to the United States circuit court in and for the Southern District of New York. The original petition and accompanying bond, and the order of removal made thereon, which are on the files of this court, show that no removal was contemplated, asked, or had, against Dixon and Learned, and that the suit, which had been discontinued as against them and Knox, was removed only as to the remaining defendants. Under these circumstances this court retained full power and jurisdiction, notwithstanding such removal, to modify the order of discontinuance as against Dixon and Learned, as justice might require ; and the modification by which it was provided that the order of discontinuance should be without prejudice to the rights of Dixon and Learned on the undertaking given by the plaintiff on obtaining an injunction, was made in furtherance of justice.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.  