Wesselman v. Stuart

O’Dwyer, J.

The defendant testified that “ the plaintiff said he would discontinue the action and take the notes in settlement df the suit. It was agreed that this case was settled by those two notes.” It thus appears that the case was settled, and either party might enter a formal order of discontinuance. Actual settlement of a cause involves practically a discontinuance; an order of discontinuance is a mere incidental matter which neither enlar ges nor diminishes the rights of either party when the case has been actually settled. Comparing the defendant’s plea with his evidence, he pleads a promised discontinuance as a consideration for the giving of a note and proves an actual settlement by means of the notes, as agreed between plaintiff and himself.

Plaintiff was, therefore, entitled to recovery herein, and it follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to appellant to abide the event.

Fitzsimons, Ch. J., and Schuchman, J., concur.

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