Sandford v. Sinclair , 6 Hill & Den. 248 ( 1843 )

By the Court, Bronson, J.

Taking our decision in the Halsey case in connection with the stipulation between the parties, we have, in effect, rendered judgment against the plaintiff upon the whole merits of the controversy; and in that state of the cause we think the plaintiff should not have leave to discontinue without costs. I do not find that the motion has ever been granted under such circumstances.^(a) If the Halsey judgment shall be reversed, the plaintiff will then be entitled to discontinue without costs; and the motion will be granted although the defendant should waive the benefit of his bankrupt’s certificate. So are the cases.

Motion denied.

(a) In such case, however, the plaintiff may obtain leave to discontinue his writ of error, without costs, on application to the court for the correction of errors. (Labron & Ives v. Woram, 5 Hill, 373.)