Heineman v. Van Stone , 68 N.Y.S. 803 ( 1901 )

Blanchard, J.

When the case came up for trial the plaintiff was absent and the plaintiff’s attorney applied to the court for leave to discontinue. The court denied the motion and exception was duly taken. This was reversible error. The plaintiff had the right to discontinue at any time before the case was submitted, and a refusal on the part of the court to permit the discontinuance is a sufficient ground for the reversal of the judgment for the defendant. Goldberg v. Victor, 26 Misc. Rep. 728.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Andrews, P. J., and O’Gorman, J., concur.

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