
    Herman Weidler, Appellant, v. John Weidler, Respondent.
    (Supreme Court, Appellate Term,
    October, 1901.)
    Municipal Court of the city of New York — Plaintiff’s right to discontinue.
    In the Municipal Court of the city of New York a plaintiff has an absolute right to discontinue an action, upon payment of costs, at any time before it is finally submitted and the judgment must be reversed where the right has been denied.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, rendered in favor of the defendant.
    Johnston & Johnston, for appellant.
    W. Wills, for respondent.
   Gildersleeve, J.

The action is for goods sold and delivered. At the trial, before the submission of the case to the jury, the plaintiff moved to discontinue the action, with costs. " The justice, however, refused to permit such a discontinuance and ordered the case to proceed. The jury found in favor of defendant, whereupon the justice, on such verdict, gave judgment absolute for defendant, dismissing the complaint, with costs. The plaintiff appeals.

It is well settled that an action in the Municipal Court may be voluntarily discontinued by the plaintiff at any time before the action is finally submitted, and that a refusal of the justice to permit such a discontinuance is a sufficient ground for a reversal of a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728. Under the provisions of the statute (Consol. Act, Laws of 1882, chap. 410, § 1382, subd. 1), the justice should have allowed the plaintiff to discontinue on payment of costs, and without prejudice to a new action.

Judgment reversed and new trial ordered, with costs to abide the event.

Freedman, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with- costs to abide event.  