Phillips v. Sun Oil Co. ( 1953 )

In an action to recover damages for injuries to person and property allegedly caused by the underground travel of gasoline from defendant’s property into plaintiff’s water well, which was situated on the opposite side of a highway, a cause of action for trespass was dismissed at the close of plaintiff’s case and plaintiff withdrew causes of action based on nuisance and negligence. On appeal plaintiff contends that it was error to dismiss the trespass action on the merits, and that the two withdrawn causes of action should have been dismissed without prejudice. Order and judgment modified on the law, as follows: By striking from the second ordering paragraph of the order the word “dismissed” and by substituting in place thereof the word “ discontinued ”, and by striking from the judgment the second decretal paragraph and by substituting in place thereof a paragraph providing that defendant recover costs from plaintiff in the stated amount and have execution therefor. As thus modified the order and judgment are unanimously affirmed, without costs. The negligence and the nuisance causes of action having been voluntarily withdrawn, without objection, they should not have been dismissed either on the merits or without prejudice. An order of discontinuance is sufficient, there being no necessity that the discontinuance be a subject of the judgment. Present — Nolan, P. J.. Adel, Wenzel, Schmidt and Beldock, JJ.