j. Radical change in the existing law. An appeal was taken that was proper under the existing law. Held, that where that law had been changed by statute pending the appeal, there might be a discontinuance without costs. Gale v. Wells, 7 How. 191;

Porter v. Jones, id. 192. The rule is the same with regard to a reported decision that has been overruled or reversed. Sunney v. Roach, 4 Abb. 16; Robinson v. Rasher, 1 You. & Col. 7.

a. Setting aside discontinuance.— Where a long time had elapsed, e. g., eighteen years, the court refused to set aside a discontinuance that had been entered by consent. State of Indiana v. Woram, 15 Abb. 264; And where the clerk of an attorney, without the consent of his principal, discontinued an action, the order was unconditionally set aside. Irvine v. Spring, 35 How. 479; S. C. 7 Rob. 293.

b. Motion to strike out one or more of the defendants. An action was brought against seven defendants, and it appeared on the trial that it could only be maintained against five of them. Plaintiff moved to strike out two of the defendants. Motion granted, but conditioned that he pay their costs. Held, that as to the two defendants severed, the allowance of costs was properly made. Marks v. Bard, 1 Abb. 63; compare, however, Woodburn v. Chamberlin, 17 Barb. 446.

c. Plaintiff creating unnecessary costs.- Where the plaintiff does this, and afterwards moves to discontinue, he must pay costs; e. g., proceeding in the action, after he has knowledge of defendant's discharge in bankruptcy. Ludlow v. Hackett, 18 Johns. 252; Merritt ads. Arden, 1 Wend. 91. fendant's answer of infancy. St. John v. . Hart, 16 How. 192. Bringing two actions where one only was necessary. Lowerre v. Vail, 5 Abb. 229.

De

d. Another action pending for the same cause.- An action was commenced in another State, after the commencement of the suit in this, for the same cause of action. Held, that that fact was no reason for discontinuing the action in this State. Republic of Mexico v. Arrangois, 1 Abb. 437; S. C. Aff'd, 5 Duer, 643. Compare, however, People v. Sheriff, etc. 1 Park. 659. If another action is pending for the same cause of action, which fact the answer sets up, the plaintiff may allege the discontinuance of the former suit in his reply. Beals v. Cameron, 3 How. 414. It is necessary, in such a case, to allege in the reply that an order of discontinuance was entered. Averill v. Patterson, 10 N. Y. (6 Seld.), 500; S. C. 10 How. 85. Such discontinuance must, however, be made before the issue had been joined, or the cause noticed for trial in the second action. Swart v. Borst, 17 How. 69.

e. Dissolution of partnership by action. With regard to such an action, the following language was used: "The court also intimated very strongly its opinion that it would not permit a suit for the dissolution of

a partnership and the settlement of the partnership debts, to be discontinued by the act or consent of the parties." There must be a special application to the court, and notice to the partnership creditors. Rutter v. Tallis, 5 Sandf. 610.

f. Bonds payable by installmentspart only due.-Where part only of a bond, payable in installments, is due, an action having been commenced to recover it, the defendant cannot bring the amount due into court, with the costs, and take a discontinuance. People ex rel. Day v. New York Superior Court, 19 Wend. 104.

g. Overseers of poor cannot discontinue after expiration of office.-An action was commenced by the overseers of the poor, and while it was pending, their term of office expired: held, that after that time they could not sign a stipulation to discontinue the action. Wright v. Smith, 13 Barb. 414.

h. Action by individual creditor.The mere pendency of an action in behalf of all the creditors against an insolvent firm, whether commenced before or since the creditors' action, affords no ground to stay proceedings in an action commenced by a single creditor in his own behalf. This is the rule until judg

ment has been entered in the creditors' action. La Cliaise v. Lord, 10 How. 461; S. C. 1 Abb. 213, sub nom. Lachaise v. Lord; 4 E. D. Smith, 612, sub nom. Lachaise v. Marks. See, also, Innes v. Lansing, 7 Paige, 583.

i. A new action may be commenced if first is discontinued.-If an order of discontinuance is entered in the action, this is of itself no bar to another action being commenced for the same cause. Earl v. Campbell, 14 How. 330.

j. Practice.-Semble, that there should be an ex parte motion to the court, or an ex parte order entered in the clerk's office, and no appeal can be had from the discretion of the court below in this matter. Cooke v. Beach, 25 How. 356.

k. Statute of limitations. Semble, that when the defense of the statute of limitations is interposed, it, in no case, furnishes sufficient ground for discontinuing without costs. Houseman v. Rosenfield, 18 Abb. 379.

7. Motion founded on affidavits.Where an action has been commenced and litigated, the plaintiff cannot be permitted to discontinue without costs, upon a motion founded solely on affidavits, and without a trial of the cause. Pennell v. Wilson, 2 Abb. N. S. 466; S. C. 2 Rob. 505; 5 id. 661. See, also, Hammersley v. Barker, 2 Paige, 373.

m. Stipulation required. In this case the plaintiff was required to stipulate that a deposition taken in the present litigation should be allowed to be read on the trial of any future action commenced on the same cause of action. Young v. Bush, 36 How. 240.

n. Effect of discontinuance.-An injunction obtained in an action is dissolved by

a discontinuance. Where such an order is

obtained, it terminates the action for all purposes. Hope v. Acker, 7 Abb. 308.

o. Voluntary dismissal - fraud.Where an action has been once voluntarily dismissed, unless it was obtained by fraud, it can never be reinstated. Orphan Asylum Society v. McCartee, Hopk. 372.

q. Appeal, how discontinued. – Where an appellant elects to dismiss his own appeal, he must enter an order to that effect, and pay the respondent's costs. A written notice served on the respondent that the appeal has been dismissed is not sufficient. Burnett v. Harkness, 4 How. 158; S. C. 2 Code R. 100. See, also, Gale v. Wells, 7 How. 191; Porter v. Jones, id. 192.

r. Infancy set up as a defense. Where an action is commenced against several defendants, and one or more of them set up the defense of infancy, the plaintiff may, on a proper application to the court, before the trial, discontinue as to such defendants, without costs. Cuyler v. Coats, 10 How. 141; Wellington v. Classon, 18 id. 10; S. C. 9 Abb. 175, sub nom. Wellington v. Claason. In such a case, the plaintiff must make his motion as soon as he is aware of such defense. If he proceeds after such knowledge, and more costs are incurred, he will be obliged to pay them. St. John v. Hart, 16 How. 192. See, also, Van Buren v. Fort, 4 Wend. 209. 8. Attorney general, insolvent inWhen an action surance companies. has been commenced by the attorney general, under Laws of N. Y., 1853, 917, ch. 466, § 24, to close the business of an insurance company, he has no discretion in the matter; he cannot carry out his own views; he is merely an assistant to the comptroller; he, of his own motion, cannot discontinue. Matter of Mechanics' Fire Insurance Co. 5 Abb. 444.

t. Supplemental complaint.-Where a plaintiff revives an action already commenced, and, in his supplemental complaint, claims the same relief as was claimed by the plaintiff in the original complaint, he cannot discontinue, without paying costs from the beginning. Fisher v. Hall, 9 How, 259. See,

also, 1 Hoff. Pr. 401; Rogers v. Rogers, 2 Paige, 459; Crippen v. Crippen, 11 id. 221; American Life Insurance and Trust Co. v. Sackett, 1 Barb. Ch. 585; Raymond v. Johnson, 11 Johns. 490.

u. After counterclaim has been interposed. The plaintiff had an absolute right to discontinue (prior to the Code), on payment of the costs, at any time before judgment, or a submission of the case to the jury. The Code has not abrogated the former practice; the plaintiff's right is now the same as it was before. The fact that a counterclaim has been set up by the defendant is no ground for refusing to allow a discontinuance. Seaboard and Roanoke Railroad Co. v. Ward, 1 Abb. 46; S. C. 18 Barb. 595. The plaintiff will not be allowed to discontinue, unless special grounds are shown, where a counterclaim has been interposed, which has not been replied to. Cockle v. Underwood, 3 Duer, 676; Aff'g S. C. 1 Abb. 1; 12 N. Y. Leg. Obs. 283; Approved in Seaboard and Roanoke Railroad Co. v. Ward, supra.

If an examination has been taken, the plaintiff should not be allowed to discontinue, without stipulating to allow such examination to be offered on a new trial for the same cause. Cockle v. Underwood, supra.

v. When counterclaim must be passed upon by the jury.-Where the defendant has set up a counterclaim, and on his own motion the complaint is dismissed at the trial, the plaintiff taking exception, the plaintiff has a right to insist that such counterclaim shall be passed upon by the jury.

The defendant cannot be allowed to withdraw it and bring an action for the same cause. Miller v. Freeborn, 4 Rob. 608. See, also. Fabricotti v. Launitz, 1 Code R. N. S. 121; S. C. 3 Sandf. 743, sub nom. Fabbricotti v. Launitz.

y. before expiration of time to reply.-The plaintiff is not precluded from discontinuing, even where a counterclaim has been set up, if the time for reply has not expired. Oaksmith v. Sutherland, 4 Abb. 15; S. C. 1 Hilt. 265; Pacific Mail Steamship Co. v. Leuling, 7 Abb. N. S. 37.

z. Excess of costs paid attorney.Where an action has been settled, and an excess of costs has been paid, said costs not having been taxed, the excess may be recovered back by action. Where the fees have

been illegally demanded, it is not a voluntary payment. Britton v. Frink, 3 How. 102; S. C. 4 id. 144; 1 How. App. Cas. 4; Clinton v. Strong, 9 Johns. 370; Ripley v. Gelston, id. 201; Wisner v. Bulkley, 15 Wend. 321.

aa. Tender of payment after the action has been commenced.—An action was commenced on a promissory note, and before the time to answer had expired, 'the plaintiff's attorney was tendered both principal and interest: held, that plaintiff was entitled to costs as well, which should also have been tendered, in order that the tender might be of any avail. Rockefeller v. Weiderwax, 3 How. 382; S. C. 2 Code R. 3, sub nom. Rockfellow v. Weiderwax.

bb. Tender, payment into court.The defendant shall recover his costs, when it is shown that the money was tendered before the action was commenced; that it was always ready, and at the trial is actually paid into court. Knight v. Beach, 7 Abb. N. S. 241. See, also, id. 249,

-

cc. Payment to unauthorized third party. After the action had been commenced, the defendant came to the plaintiff's store and paid the amount claimed to a clerk, who, however, had no knowledge that an action had been commenced. Held, that the plaintiff was entitled to costs. Bogardus v. Rightmeyer, 3 Abb. 179. See, also, People v. Banker, 8 How. 258.

dd. Tender before action commenced, but after attorney retained. The creditor employed an attorney, who had filed a declaration and mailed a copy to the sheriff for service. Before this was served, the debtor made a tender of the amount due, but without costs. Held, sufficient, particularly if he is not informed by the creditor, what costs have been incurred. Hull v. Peters, 7 Barb. 331; overruling Retan v. Drew, 19 Wend. 304.

ee. Defense arising after action commenced.-Before the Code, the defendant could not plead a satisfaction of the plaintiff's demand, under the general issue. Boyd v. Weeks, 2 Denio, 321. But since the Code, he may do so. After the action has been commenced, the defendant may settle the

cause of action, and then set that fact up in his answer. Willis v. Chipp, 9 How. 568.

ff. Foreclosure actions, no costs to junior incumbrancers.—Where an action is commenced to foreclose a mortgage, the plaintiff may discontinue his action, with out paying the costs of junior incumbrancers, who have appeared in order that their rights might be protected. Gallagher v. Egan, 2 Sandf. 742.

gg. General rule as to foreclosure actions.-Where an action is commenced to foreclose a mortgage, on default of the payment of interest, unless there is some oppressive conduct on the part of the plaintiff, the defendant cannot move that the action be discontinued, on his paying into court the interest due. Ferris v. Ferris, 28 Barb. 29; S. C. 16 How. 102. See, also, Hunt v. Keech, 3 Abb. 204; Noyes v. Clark, 7 Paige, 179; Lynch v. Cunningham, 6 Abb. 94; Steele v. Bradfield, 4 Taunt. 227; Thurston v. March, 5 Abb. 389; S. C. 14 How. 572, sub nom. Thurston v. Marsh; Gowlett v. Hanforth, 2 Wm. Black, 958; Bartow v. Cleveland, 7 Abb. 339; S. C. 16 How. 364.

hh. Adjustment of costs in foreclosure actions.-Where an action has been commenced to foreclose a mortgage (the rule is the same in any equitable action), and tender has been made before judgment, either party may make application to the court to have the costs adjusted. Pratt v. Ramsdell, 16 How. 59; S. C. 7 Abb. 340 (n.) See, also, Pratt v. Conkey, 15 How. 27.

ii. More than one defendant.— An action was commenced on a joint and several bond, against several defendants, who defended separately. Held, that if the plaintiff settled the action with one or more of the defendants, without the concurrence of the others, he was liable to such others for the costs of the defense. Clark v. Wood, 9 Wend. 435.

jj. Actions by officers jointly.Where an action is commenced by more than one officer, e. g., two or more overseers of the poor, one of them cannot discontinue without the consent of the rest. Perry v. Tynen, 22 Barb. 137. See, also, Downing v. Rugar, 21 Wend. 184.

III.

IV.

term.

SECTION 323.

a. General. The law provides but two modes of correcting errors in legal proceedings: One by motion, where the error is one of form arising out of a failure to conform to the settled practice of the court; the other by appeal, where the errors consist in the omission of the court itself to properly observe and apply the law affecting the rights involved in controversy in making its adjudication upon them. DANIELS, J., in Libby v. Rosekrans, 55 Barb. 202.

b. Suits commenced before the Code. In all cases where the suit was instituted prior to the adoption of the Code, and determined afterward, the parties, on appeal, must be governed in their proceedings as far as practicable by the new regulations; but where this will not accomplish the desired end, the parties are at liberty to resort to the former practice unless the latter course has been plainly prohibited by legislative enactment. Thompson v. Blanchard, 4 How. 260; S. C. 3 id. 399; Farmers' Loan and Trust Co. v. Carroll, id. 211; S. C. 2 N. Y. (2 Comst.), 566; 2 Code R. 138. And see Lake v. Gibson, 3 How. 420; S. C. 2 N. Y. (2 Comst.), 188; Doty v. Brown, 3 How. 375; Scott v. Becker, id. 373; S. C. 2 Code R. 3; Butler v. Miller, 3 How. 339; S. C. 1 | Code R. 110; 1 N. Y. (1 Comst.), 428;

Selden v. Vermilya, 3 How. 337; S. C. 1 Code R. 110; Spalding v. Kingsland, 3 How. 337; S. C. 1 Code R. 110; Mayor, etc. of New York v. Schermerhorn, 3 How. 334; S. C. 1 Code R. 109.

c. Writ of error.-That the form of an appeal as a substitute for a writ of error was not intended in all cases, is evident from sec tion 471. Freeman v. Kendall, 41 N. Y. (2 Hand), 518. The proper method of review ing an award of arbitrators is by writ of error. id. Isaacs v. Beth Hemedrash Society, 19 N. Y. (5 Smith), 584. Before the enactinent of 1859, ch. 174, a final decision of the supreme court in proceedings by mandamus, was re viewable by writ of error. Becker v. People, 18 N. Y. (4 Smith), 487; People ex rel. Bender v. Church, 20 N. Y. (6 Smith), 529. But an appeal is now the form. id. And see § 333, post and note. The review of a final decision of the general term upon a writ of certiorari is properly effected by means of a writ of error Freeman v. Ogden, 40 N. Y. (1 Hand), 105, 106; S. C. below, 17 Abb. 326 (n.) A writ of error is not the mode of bringing up for review a decision of the supreme court in a special proceeding, as defined by the Code King v. Mayor, etc. of New York, 36 N. Y. (9 Tiff.), 182; S. C. 1 Trans App. 288. A writ of error in behalf of the people will lie after

judgment in favor of the defendant, in criminal cases. Laws of 1852, ch. 82. People v. Barry, 10 Abb. 225, 227; S. C. 4 Park. 657. d. Nature of an appeal.-The appeal was intended to be a mere substitute for a writ of error in respect to common law judgments and proceedings, and in respect to equitable proceedings, the appeal is intended to be such a proceeding and with just such force as was formerly in practice in reviewing proceedings in equity. Gormly v. McIntosh, 22 Barb. 271. An appeal is in the nature of a new action. id. Whitley v. Leeds, 27 How. Tindal v. Jones, 11 Abb. 258, 259; S. C. 19 How. 469; Kanouse v. Martin, 2 Sandf. 739; S. C. 3 Code R. 203; Enos v. Thomas, 5 How. 359. But the following cases hold to the contrary. Jackson v. Allen, 26 How. 119; Seely v. Prichard, 12 N. Y. Leg. Obs. 245; S. Č. 3 Duer, 669; Johnson v. Yeomans, 8 How. 140. And in Ranney v. Stringer, 4 Bosw. 663, it was expressly held, to be a continuation of the original action.

378;

e. Appeals by the people or State officers.—An appeal may be brought by the people of the State, or any state officer or board of State officers, from any judgment or order against them, in any court, without any undertaking or security whatever, and such appeals now pending, or that shall hereafter be brought, shall operate as a stay of proceedings on the judgment or order appealed from. Laws of 1861, ch. 288, § 2.

f. Municipal corporations-appeals by.-All appeals by municipal corporations from the judgment or decree of any court of this State, shall be valid to stay proceedings on such judgment or decree, without security or undertaking being given, unless the court in which such judgment or decree is rendered shall otherwise direct; and in such case, an undertaking, executed in their official capacity; by either the mayor, comptroller or counsel to the corporation in the name and on behalf of said corporation, shall be valid for the purpose of such appeal, and shall bind said corporation to the performance of the conditions of said undertaking. Laws of 1859, ch. 662, § 1.

g. Appeal by pauper. The statute authorizing prosecutions in forma pauperis does not include appeals, and a pauper cannot appeal as such. Ostrander v. Harper, 14 How. 16. See, also, McDonald v. Bank for Savings in the city of New York, 2 How. 35; Bolton v. Gardner, 3 Paige, 273; Moore v. Cooley, 2 Hill, 412.

appeal was dismissed on the ground of waiver are those where the appellant had attempted actively to enforce either the whole of a judgment-order or decree in his favor, or else some part thereof, connected with and dependent upon such other part thereof as he may have appealed from; or else where he had availed himself of some benefit or favor, granted or offered by such judgment-order or decree, as an alternative to exercising the right of appeal. ROBERTSON, J. in id. If the defendant voluntarily tenders the amount of the verdict in favor of the plaintiff, with costs, the acceptance of such amount does not pre clude the plaintiff from appealing. id; Higbie v. Westlake, 14 N. Y. (4 Kern.), 281; Clowes v. Dickinson, 8 Cow. 328. Where a party took proceedings on one part of a judgment in his favor, and then appealed from the residue, held, that all the provisions of the judgment being connected and dependent, the appellant must be deemed to have waived his right to appeal. Bennett v. Van Where an Syckel, 18 N. Y. (4 Smith), 481. paying costs, the other, by accepting such order was granted to the one party, upon his costs, was held to waive his right to appeal from the order. Lewis v. Irving Fire Insurance Co. 15 Abb. 140 (n.) And to the same effect is Radway v. Graham, 4 Abb. 468 avails himself of a privilege to renew, he canWhere a party, on the denial of a motion, not appeal from the order denying the motion in the first instance. Noble v. Prescott, 4 E. D. Smith, 139. And, see further on this subject, Brown v. Richardson, 7 Rob. 57; LupKelly v. Bloom, 17 Abb. 229; Wells v. Danton v. Jewett, 19 Abb. 320; S. C. 1 Rob. 639; forth, 1 Code R. N. S. 415. A sheriff does not waive his right to appeal from a judgment rendered against him for an escape, although ment and execution the limit bond, and he has, in the meantime, prosecuted to judgalthough he has collected a portion of the Campbell, 32 N. Y. (5 Tiff.), 455. judgment against the sureties. Lawrence' v.

i. Dismissal or abandonment of the appeal, if voluntary, does not preclude the party from renewing the appeal within the time limited by law. Crafts v. Ives, Ct. App. October, 1852. Or if there is a defect in the undertaking, the appellant will be allowed to bring a new appeal. Kelsey v. Campbell, 14 Abb. 368; S. C. 38 Barb. 238; Langley v. Warner, 1 N. Y. (1 Comst.), 606; S. C. 3 How. 363; 1 Code R. 111. But the non-payment of costs of the first appeal is ground for staying proceedings on the second appeal. Dresser v. Brooks, 5 How. 75. If the appelconditions, he is entitled to an order to lant offers to dismiss his appeal on reasonthat effect. Porter v. Jones, 7 How. 192; Burnett v. Harkness, 4 id. 158; S. C. 2 Code R. 100. But he usually has to pay respondent's costs. id. And see Warren v. Eddy, 13 Abb. 28; S. C. 32 Barb. 664.

j. Appeal, effect of.-The court below, while the appeal is pending in the court of