Benedict v. Dixon

15 Jones & S. 379

• Court: The Superior Court of New York City
• Decided: June 6, 1881
• Status: Published

Opinion

By the Court.—Freddman, J.

This action was originally brought by the plaintiff against Dixon, Learned, Knox, Williams and Kernochan as defendants. Knox did not appear. The other defendants did, but before service of any answer or demurrer, the plaintiff discontinued the action as to Dixon, Learned and Knox, and an order of discontinuance was entered to that effect. Thereafter, the action, then standing against only Williams and Kernochan as defendants, was, on plaintiff’s motion, duly removed to the United States circuit court in and for the Southern District of New York. The original petition and accompanying bond, and the order of removal made thereon, which are on the files of this court, show that no removal was contemplated, asked, or had, against Dixon and Learned, and that the suit, which had been discontinued as against them and Knox, was removed only as to the remaining defendants. Under these circumstances this court retained full power and jurisdiction, notwithstanding such removal, to modify the order of discontinuance as against Dixon and Learned, as justice might require ; and the modification by which it was provided that the order of discontinuance should be without prejudice to the rights of Dixon and Learned on the undertaking given by the plaintiff on obtaining an injunction, was made in furtherance of justice.

The order appealed from should be affirmed, with costs.

Speir, J., concurred.