
    White and others vs. Smith and others.
    Though, in an action of assumpsit against several defendants, commenced by dec. laration in the recorder’s court of the city of Buffalo, one of them reside out of the jurisdiction of the court and be not served with the declaration, the plaintiff cannot treat the suit as a mere nullity.
    A suit having been commenced, and an attorney employed for the defendants, the plaintiff, before receiving notice of retainer, entered a rule to discontinue and commenced a second suit against the defendants for the same cause ; to which they pleaded the pendency of the first suit in abatement: Held, that the plaintiff having omitted to pay the costs of the first suit, the rule for discontinuance was a nullity, and formed no answer to the plea.
    Had the plaintiff, on receiving the plea in abatement and before replying, paid the costs of the first suit, the payment would have related back to the time the rule for discontinuance was entered, and thus rendered it effectual. Per Bronson, J.
    Though the rule entered in such case be, that the plaintiff have leave to discontinue without costs, it will not avail him unless the costs be paid.
    Error to the recorder’s court of the city of Buffalo. The action was assumpsit by Smith and others against White and others, and was commenced by capias on the 2d of April, 1841. The defendants pleaded in abatement another action pending foi the same cause, brought by the same plaintiffs against the same defendants in the same court. Replication, taking issue on the pie a. < On the trial, it appeared that another action for the same cause was commenced against the defendants by the plaintiffs in the recorder’s court, by the filing of a declaration and service of copies upon two of the defendants on the 24th of February, 1841. Stearns, the third defendant, residing out of the county, was not served with a copy of the declaration. On the 25th of February, the two defendants served with the declaration employed an attorney to defend the suit, who gave notice of retainer in that action after the present suit was commenced and before pleading therein. On the 25th of March,, the plaintiffs entered a rule in the common rule-book discontinuing the first suit without costs. No notice of this rule appeared to have been given. The plaintiffs proved their cause of action, and the recorder decided that they were entitled to recover, whereupon the defendants excepted. Verdict and judgment for the plaintiffs. The defendants brought error.
    
      R. Tillinghast, for the plaintiffs in error.
    
      H. W. Rogers, for the defendants in error.
   By the Court,

Bronson, J.

Although one of the defendants lived put of the jurisdiction of the recorder’s court, and was not served with the declaration in the first suit, that action was not a mere nullity, and I do not see how we can avoid reversing this judgment. It is settled that a rule to discontinue does not put an end to the suit until the costs are paid. (McKenster v. Van Zandt, 1 Wend. 13; James v. Delavan, 7 id. 511.) And this is so, although the defendant has only employed an attorney, and no notice of the retainer has been given at the time the rule to discontinue is entered, which was the case here. (Robinson v. Taylor, 12 Wend. 191.) When the plea in abatement in the second suit was received, the plaintiffs should have paid the costs of the first action before replying, and such payment would have related hack to the time the rule to discontinue was entered, which was prior to the commencement of the second suit. (Brandt v. Peacock, 1 Barn. & Cress. 649.) This would have avoided the difficulty. But the costs were not paid, and the first suit was consequently pending at the time of replying. Indeed, as the costs have never been paid, that action is pending still.

As the rule entered was, that the suit be discontinued without costs, it is said that it was conclusive upon the defendants until the rule should be set aside. ' But the cases to which I have referred show that the plaintiff cannot get rid of an action he has commenced, by entering an ex parte order to which he is not entitled. The defendant may treat the suit as still pending.

Judgment reversed.  