Schenck v. Fancher & Long , 14 How. Pr. 95 ( 1856 )

Paige, Justice.

Where a copy of the complaint is not served with the summons, and the plaintiff fails to serve a copy of the complaint within twenty days after a written demand, the defendant may at once move, under § 274 of the Code, for dismissal of the complaint. (§ 130 of Code, 5 How, Pr. R. 124.) In this case, as no answer had been put in setting up a counter-claim, the plaintiff had the right to discontinue his suit without leave of the court. But this could not be done by merely serving a notice of discontinuance, without the entry of a rule or order to that effect.

It was decided, in Averill agt. Patterson, (10 How. Pr. R. 85,) that the practice of requiring the entry of a rule of discontinuance, which prevailed before the adoption of the Code, was still in force. (See § 469 of the Code, and rule 90.)

The plaintiff in this case, having omitted to enter an order of discontinuance, his notice to that effect was ineffectual to discontinue the suit. The defendant Fancher is, therefore, regular in making this motion.

If the plaintiff had entered an order of discontinuance, the defendant’s attorneys would not, under the decision of the court of errors in Smith agt. White, (7 Hill, 520,) have been entitled to costs. That case decides, that if a suit is discontinued before service of a notice of appearance, although after an actual retainer, the attorney of the defendant is not entitled to any costs. A contrary decision was made in Foster agt. Bowen. (1 Code Rep. N. S. 236; Code, Voorh. 4th ed. 509.)

An order for discontinuance must be entered, and the plaintiff must pay the defendants’ attorneys’ costs, allowed by the 307th section of the Code, and $7 costs on this motion.