Sheeks v. Sample , 151 N.Y.S. 884 ( 1915 )

Guy, J.

Plaintiff sued to recover upon an alleged claim against the defendant amounting to the sum of $401.30. The briefs of both parties contain statements as to what occurred in the court below, but few of such statements are sustained by the record and cannot therefore be considered. The return shows that issue was joined between the parties upon verified pleadings the defendant setting up in substance, that the plaintiff’s cause of action had not yet accrued, but interposing no counterclaim or set-off. The summons was returnable on November 11, 1914, and the case was adjourned from time to time until November 30, 1914. At that time the plaintiff went upon the stand and testified, in substance, that between the day of the service of the summons and the day of the trial the defendant had called upon her and paid her the full amount of her claim, and that he refused to pay any costs, and that she accepted the $401.30 in full satisfaction of the account she had against him. Thereupon the defendant moved to dismiss the complaint and the plaintiff moved that the case be marked 1 ‘ settled and discontinued.” The court below refused to grant the plaintiff’s motion and granted the defendant’s motion to dismiss the complaint and gave judgment in favor of the defendant and against the plaintiff for thirty dollars costs. There is no warrant in law for this disposition of the case. Section 248 of the Municipal Court Act provides that judgment that the action be dismissed, with costs, may be granted when the plaintiff voluntarily discontinues the actio.n and although there is no express provision in the act as to the amount of costs to which a defendant is entitled in such a case this court has held that he is entitled to the same costs as provided under section 332 in cases of non-appearance of the plaintiff. A. Blum, Jr. & Sons, v. O’Connor, 84 N. Y. Supp. 207; Goldstein v. Perlman, 128 id. 21. This section has no application, however, where the parties settle the case before judgment. The plaintiff in such a case cannot be said to “ voluntarily ” discontinue as it is a settlement of the case by consent of the parties. Parties have a right to settle their differences without the consent of their attorneys. Matter of Snyder, 190 N. Y. 66. It is competent for the parties to settle and discontinue a suit before judgment without the consent of the attorney and he is remitted to his remedy against his client for his compensation. Randall v. Van Wagenen, 115 N. Y. 527; Fischer-Hansen v. Brooklyn Hts. R. R. Co., 173 id. 492, 501; Seventh Ave. Meat & Provision Co. v. Del Favero, 123 N. Y. Supp. 46. Upon proof that the parties had settled their matters of difference the case should have been so marked and no judgment in favor of either party entered.

Pendleton and Sheabn, JJ., concur.

Judgment reversed, with costs of appeal.