Schnabel v. Hanover Nat. Bank

City of New York Municipal Court

Schnabel v. Hanover Nat. Bank

141 N.Y.S. 223

DecidedMarch 15, 1913

StatusPublished

This text of 141 N.Y.S. 223 (Schnabel v. Hanover Nat. Bank) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schnabel v. Hanover Nat. Bank, 141 N.Y.S. 223 (N.Y. Super. Ct. 1913).

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Opinion

FINELITE, J.

The plaintiff moves this court by motion why an order should not be granted permitting them to discontinue, without costs, the first, second, third, eighth, ninth, tenth, and' eleventh causes of action alleged in their complaint, and also to vacate an order which had heretofore been granted on December 3, 1912, for the issuance of a commission. The herein complaint, as served upon the defendant, contained 11 separate and distinct causes of action. The defendant herein opposes the motion, unless he receives, as a condition for allowing the plaintiff to discontinue said causes of action $10 costs for each cause of action in said complaint alleged.

The reason asserted by the plaintiffs for their desire to discontinue the 7 causes of action is that the Court of Appeals had held, in Lewkowicz v. Queen Aeroplane Co., 100 N. E. 796 (decided January 28, 1913), that the Legislature, under article 6, § 18, of the Constitution of the state of New York, was unauthorized to increase the jurisdiction of this court from $2,000 to $5,000. It is true that the plaintiff relied upon the constitutionality of the act, and thereupon brought its suit involving more than $2,000. Defendant was obliged to defend the action by interposing its answer. It is no fault of the plairitiff that the Court of Appeals had declared the act unconstitutional; but as there was one complaint, with several causes of action therein embodied, and as the defendant has interposed one answer, denying the several causes of action as alleged in said complaint, the defendant would be ehtitled to a sum not exceeding $10 costs. And, as it has been said in Susman v. Dangler, 95 App. Div. 158, 88 N. Y. Supp. 527:

“The plaintiff in an action at law is not invariably obliged, as a condition of being permitted to discontinue the action, to pay all the taxable costs to the date of the motion, but only such costs as the court in its discretion sees fit to impose, and while it may be usual to require the payment of all accrued costs to the day of allowing the discontinuance of an action on plaintiff’s application, there may be cases where reasons appear to the court for imposing more moderate terms as costs.” Overton v. Nat. Bank of Auburn, 3 N. Y. St. Rep. 169; De Barante v. Deyermand, 41 N. Y. 355.

Motion granted upon payment of $10 costs. Settle order on one day’s notice. x

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FINELITE, J.

The plaintiff moves this court by motion why an order should not be granted permitting them to discontinue, without costs, the first, second, third, eighth, ninth, tenth, and' eleventh causes of action alleged in their complaint, and also to vacate an order which had heretofore been granted on December 3, 1912, for the issuance of a commission. The herein complaint, as served upon the defendant, contained 11 separate and distinct causes of action. The defendant herein opposes the motion, unless he receives, as a condition for allowing the plaintiff to discontinue said causes of action $10 costs for each cause of action in said complaint alleged.

The reason asserted by the plaintiffs for their desire to discontinue the 7 causes of action is that the Court of Appeals had held, in Lewkowicz v. Queen Aeroplane Co., 100 N. E. 796 (decided January 28, 1913), that the Legislature, under article 6, § 18, of the Constitution of the state of New York, was unauthorized to increase the jurisdiction of this court from $2,000 to $5,000. It is true that the plaintiff relied upon the constitutionality of the act, and thereupon brought its suit involving more than $2,000. Defendant was obliged to defend the action by interposing its answer. It is no fault of the plairitiff that the Court of Appeals had declared the act unconstitutional; but as there was one complaint, with several causes of action therein embodied, and as the defendant has interposed one answer, denying the several causes of action as alleged in said complaint, the defendant would be ehtitled to a sum not exceeding $10 costs. And, as it has been said in Susman v. Dangler, 95 App. Div. 158, 88 N. Y. Supp. 527:

“The plaintiff in an action at law is not invariably obliged, as a condition of being permitted to discontinue the action, to pay all the taxable costs to the date of the motion, but only such costs as the court in its discretion sees fit to impose, and while it may be usual to require the payment of all accrued costs to the day of allowing the discontinuance of an action on plaintiff’s application, there may be cases where reasons appear to the court for imposing more moderate terms as costs.” Overton v. Nat. Bank of Auburn, 3 N. Y. St. Rep. 169; De Barante v. Deyermand, 41 N. Y. 355.

Motion granted upon payment of $10 costs. Settle order on one day’s notice. x

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141 N.Y.S. 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schnabel-v-hanover-nat-bank-nynyccityct-1913.

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