Averill v. Patterson , 1 Seld. Notes 170 ( 1853 )

Where an answer sets up as a defence the pendency of a former suit for the same cause of action, it is sufficient, in reply, to show the discontinuance of the former suit after the service of such answer.

A reply, stating that the former suit was discontinued by a notice in writing to that effect, served upon the defendant before the answer was verified or served, is not sufficient.

To discontinue a suit, a rule or order to that effect must be entered in the clerk’s office, and notice thereof served upon the defendant.

Such was the former practice, and the Code of Procedure has not changed it. It is deemed important to adhere to this practice, in order that record evidence of the discontinuance of suits may be preserved; otherwise they may be revived after any lapse of time, there being no statute of limitations on the subject.

If the defendant has not appeared in the suit, it is not necessary to pay or tender costs.

(S. C., 10 N. Y. 500.)