Livermore v. Berdell

60 How. Pr. 308

Opinion

J. F. Daly, J.

As defendant has interposed a counterclaim, it is not a matter of course that plaintiff shall be allowed to discontinue, but the order is discretionary. Plaintiff’s object in discontinuing is to commence a new action and obtain a new order of arrest, this order of arrest in this action having been vacated. Leave to discontinue should not be granted for that reason. The courts are opposed to arresting a defendant twice for the same cause of action (See Wright agt. Rutterman, 1 Abb. [N. S.], 428, 431, 432; Enoch agt. Ernst, 21 How. P. R., 96). If the plaintiff’s action were not maintainable, he should be allowed to discontinue, and a new order of arrest for a new action might be granted (People agt. Tweed, 63 N. Y., 202). But.if the second action be brought merely for the purpose of arresting defendant, after plaintiff has failed through his own fault to sustain the first arrest, the proceedings in the second action might well be regarded as intended onlj to vex and harass defendant.

The motion to discontinue must be denied, with ten dollars costs.