The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-12-13

either vsrtv noticing the cause for trial 70 proceed with
the and tshe Dismissal Of the complaint or YER
dict ju 3gment the may require section l49,
allowing the defendant in his 70 state any Dsw
matters stiutlpg defence counter claim; section
1885, allowing the plaintiff to reply 70 an answer setting
ant when the plaintiff fails to reply demnr within the
time prescribed by law to FOR such judgment a. he
Of Gsnsses and section iss declaring that new
matter In the act up counter caam is to Be
deemed admitted IL it 10 not controverted The sec
tice the cause Tor trial. afer noticing 1t to pro-
ceed with the CASE and take such Judgment as the case
REQUIRES apply TO q. dsfsnd.n.s WHISTLER they sss ug
set up ihcse sscsisns do not thsreoss help the de-
ss ssp T..
pied. Sections l<o and lt3 only allow the counter
claim 70 be SET ~ - defence, and then permit the
Section l54 allows the defendant when the plaintiff fas
to reply demur to counter claim, to for such
does awe defsndant an absolute right IN certain
event to have an Affirmative Judgment II bis favor but
II 10 until that event that 1t gives any such
WIEN the pisint fails to reply or dsmur within TIE
time prescribed BY law Before that failure the part
q the plaintiff he retain. :. The .shts Which he had
cept with the special leave OF the court the plaintiff
replies to the counter claim his reply be false he
right which he would have had il the false unsus-
tsnatle reply had not been put in and therefore, In
Of counter claim after issue joined, the dofendont
noticing the causefor trial should, las 268 and 274
srow) have his aiHfmatve relief and such Judgment
his may require The notes of the coders to their
report Of 1850 under chapter of title as to the
answer" pp 1911 I'll were referred to- to show that
they intended that the plaintiff should not have leave
discontinue Such doubt the intention Of those
gentlemen in certain cases, OF them present at
the argument suggested, but he also showed they
expressed that intention not in the
WI ch adopted by the legislature but in chapter
Of title s. as to judgments in general; which chapter
adopted in part by the Leg ture but with the
clusion Of the section referred to. This shows, frs
that the codiers deemed press provision
TO cut of the general right Of the plaintiff to dismiss his
action and that they did not 10 cut it Oh by
imIcation and next that the legislature having the
subject before them did not choose alter the old
In the chapter last referred to- section 748 corresponds
with section 25 Of the Code sections TAO and $50 with
section ia Of the Code and section ISL with section 25
Of tie Code Then follows section 1852, which not
adopted. and which proposed TO abolish all other modes
ofdsmssing action except those therein specified
One Of those modes was by the plaintiff himself ut
any time before trial, If provisional remedy has not
been allowed or counter claim made" 1t would seem
this ancient and firmly established right Of plaintiff
merely because counter claim made, and that the
todfeTs did not unless their express provision
for that purpose should be adopted. BY clear impca
ion they have abolished it when the plaintiff fails TO
reply demur TO the counter claim appear the
trial. but then only Whether under the general power
OF the to control it's process and the order
by it, in its name 1t may not when the defendant will
otherwise lose his redress order Of dismissal
entered by the plaintiff, need not be examined This
presents such circumstances The case of Cor
kle Underwood, decided by Judge Bosworth in the
Superior Court has been submitted to since the
gument of this cause. In that the plaintiff had
failed to reply to the counter claim within the time pre-
net dismiss his complaint without special leave The
order appealed from is afir med with COSTS