Springer v. Bosselman , 78 N.Y.S. 1139 ( 1902 )

Per Curiam.

The action is to recover $247.50 for goods sold and delivered. The answer is a general denial, with a counterclaim for breach of contract. The action was tried on November 4, 1901, and at the conclusion of the trial it was stipulated by counsel that the briefs might be submitted on or before November 11, 1901. Subsequently, but prior to November 11, 1901, the plaintiffs applied ex parte for leave to discontinue on the payment of costs, and afterward moved, on notice, for an order “ discontinuing and dismissing the above-entitled action, upon payment by the plaintiffs to the defendant of the statutory costs to date, but without prejudice to the bringing of a new action.” This motion was noticed for Eovember seventh. On Eovember 11, 1901, an order was made denying the motion, and judgment was rendered in favor of the defendant, upon the counterclaim, for $270 damages and costs. Erom this judgment and the order denying plaintiffs’ motion to discontinue upon payment of costs, the plaintiffs appeal.

The plaintiffs had a right to discontinue their action at any time before the cause was finally submitted to the justice for his judgment. Goldberg v. Victor, 26 Misc. Rep. 728. The interposition of a counterclaim by defendant does not deprive plaintiffs of this right. Bidwell v. Weeks, 2 Hilt. 106; Tubbs v. Hall, 12 Abb. Pr. (N. S.) 237. The application for leave to discontinue on payment of costs was made, as we have seen, previous to Eovember 11, 1901, the day fixed for the filing of the briefs. Where the justice reserves his decision in order to enable the parties to file briefs, the case is not before him for decision, and the time within which he must make his decision does not begin to run until the briefs are filed. Babin v. Ensley, 14 App. Div. 548. Plaintiffs’ application having been made before the briefs were due, or had been filed, was well within the rule that an .action in the Municipal Court may be voluntarily discontinued by the plaintiff at any time before the action is finally submitted, upon the payment of costs, and a refusal of the court to permit such a discontinuance is a sufficient ground for the reversal of a judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728.

The judgment and order must be reversed, with costs, from which the costs in the court below should be deducted. ■

Present: Fbeedmae, P. J., Tbuax and Gildebslebve, JJ.

Judgment and order reversed, with costs.