Houseman v. Rosenfield

18 Abb. Pr. 379

• Court: New York Supreme Court
• Decided: February 15, 1865
• Status: Published

Opinion

By the Court.—Ingraham, P. J.

The plaintiff obtained leave to discontinue on the ground that the defendant sets up the Statute of Limitations,

After the answer was put in, the plaintiff did not move for this leave, but virtually tried his case by calling on the defendant to be examined as a witness, with a view to ascertain if there was any way to avoid this defence, and finding there was not, he made the motion.

The only cases in which such leave to discontinue without costs has been granted, is where an executor or receiver sues and discovers a mistake after suit brought, and in cases of a defence of insolvency or infancy. In the first class of cases, the executor or receiver would not be liable for costs, except by order of the court. In the latter class, the defences are within the knowledge of the debtor, not of the plaintiff.

In the case of the Statute of Limitations being pleaded, no such excuse can be offered. The plaintiff knew when his claim accrued. He also knew whether he had the means of resisting that defence.”

If with this knowledge before him, he still persisted in bringing his action, and if, after the defence was put in, he continued to increase the expense by examining the defendant, he presents no meritorious case to the court for their indulgence.

But this defence never has been considered a sufficient ground to allow a discontinuance without costs, and no case has been cited, nor can I find any in which such leave has been granted.

There is no propriety in extending this class of motions to cases other than those in which they have heretofore been granted.

The order at chambers should be reversed.