The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-09-10
couaT OF coKM1a plEAs--spscAl TERM

coUaT OF CokHlR PLEAs-SpscAl TERM
The Pacific hIni! Steamship Cosnrnny--lmpor-
tant Opinion by Jaagc Brady.
The Pacific Mty Steamship Company rs Lealin0
ana Joel.-Judge Brady has delivered the following
opinion in this case:--
have not been able to arrive definitely at the con-
clusion that the defendants have interposed c0uu
yer claim IN TINS aceon wnicn can ne enforced
the North American Ll0yd's Steamship Company and
rnose OF the defendants to thai company ana the
rights and liabilities Of the parties hereto acquired
by the agreement in reference to the organization
OF q new company VIII be necessarily involved In
to me, although think am not called upon to de-
eide the question upon this matter that the parties
necessary to such an investigation are not before
She Court IT may be proper upon this subject to
say In addition That the plaintiffs seem to have
invited an examination and settlement OF their &C
counts with the defendants and to have In that way
called upon TINS Court to exercise its Jurisdiction
over both; but that proceeding was predicat "a on
IN an ami NJ te
manner, the result OF which would be, as they al
ege, that selling for far less than their value the
plaintiffs would surfer pccunariy, lnasmuch they
would be entitled to credit OF the amount realized
upon such sale. The chief design OF the plaintiffs
seems to nave been to have the vessels sold sepa-
ratey. Assuming however, without further com
mcnt, that valid counter claim has been set up it
appears to be denied by the plaintiffs and put liz
issue, and 1t does not appear that 1t would be
teopardzed by discontnuance Of this action or by
the pleadings and right In reference to the subject
OF which they would be deprived by a
discontinuance Under such circumstances the
right TO discontinue will not be controlled although
. counter claim has been interposed. The cases are
uniform on this subject tOaxsmith vs. Sutherland,
Hilton y. Rep 2ss; Van Allen vs. schermernorn, L.
Rep, 25s; Cook vs. Beach, Is How. Pr. Rep. 356,
Cummins vs.. Benefits Page ONO Rep, 70; Young VS..
Railroad Company Vs. Wood, Is Barbour Rep, 1851
It Is claimed by the defendants that they are pre-
for the damages sustained in consequence OF Its ex
tence; that by the disconiinuance OF the action the
Court does not IN the language OF the undertaking
with reference TO the injunction, naly decide that
the plantitr was not entitled thereto" 1his ques-
ton has teen substantially decided by the Superior
Court at general term, in the Of Carpenter
Wright. a Bosworth. Superior Court Reports, ESQ.,.
,o s tSe nan sang Sen @ on dn G
held that it had been finally determines
In the action that the plaintiff was not
tits entered an order dissolvng the injunction
their consent thereto and on their own notion and
when the cause perempiorlly set down for trial
discontinued it. The order dss0lving the injunction
was entered after motion TO Increase the security
originally given by the plaintiffs and 1t is fair con-
cluson, In consequence OF such motion having been
made The plaintiffs having obtained on order dis
solving the Injunction are concluded by It, and hav-
Ing entered an order OF discontlnuance are con-
cluded by that Also No conclusion is to be drawn
nom the first order other than that Tho Injunction
could not finally DO maintained, ald tne second or
DOR taken in connection with The first, Is formal
decision that the plaintiffs were not entitled to the
injunction. entertain no doubt about these views.
H. at the conclusion Of the action the Injunction ~
not In the hnG determination as to 1t Is against
the palntifand 1t matters not in relation TO the de-
fendant's remedy on the undertaking whether the
Is ended by the act OF the plaintiff or not-he
does not MAINTAIN tine case he mas made and bears
Inc Methodist CHURCHES Of New YORK vs. Barker as
N. Y. Rep, 463l an order OF reference was made
where the complaint had been dismissed. 1t does
not appear by the report whether the dismissal
was upon trial or Otherwise. In legal effect az
least, IN reference to the DEFENDANTS tights upon
be no distinction between a dismissal of the com
plant for failure TO prosecute and Giscontinuance
In both the plaintin refuses to proceed upoh The
merits TO submit his claim to the tribunal he has
selected after the issues pado ana his refusal Is
quasi admission That no cannot maintain the ection
therc existing. such an admission involves the con-
cessons that the Injunction could not be sustained
and that the plaintiff was not entitled to It,
When the plains.n's right to discontinue
IA to be employed would be I'M
just to uphold contrary doctrine The Code
does not IN my view OF II require that Judgment
should be entered 10 make Tie dccniaut's remedy
the undertaking perfect. IL is only required thai
she Court sou!ds finally decide thai the pant,n WAS
not entitled 10 the injunction, which, as Mfeady sug
jested, has been done IN tins case; but all question
upon that subject can be set at rest by the entry OF
ejudgInent OF discontl',aance t true ihat rule
for the discontnuance OF an action without pay
ment Of costs IL q nudity (Mckeuslcr W.. Van Zandg,
Wen, 10; James VS.. Delavan, Wen, 81. The
defendant chose to regard il, bur there is moth
ing to prevent his entering npa Judgment for costs
n no prefer that mode tSee Burreli's i. IL. vol,
Frst-That the plaintiffs hal the right
to discontinue subject to the power of the Court TO
review and 10 restrict tho exercise OF such author
ity. young w. Bush, 10 How. Pr. r. $40, supra
SecOnd-That IN This case the counter claim having
been denied, and no ,nterlocutory decree order
having been made III the defendants' faYor, aud it
not appearing hat any right oil theirs relation to
the subject matter OF the action or their counter
claim WIN De Jeepardzea thereby, the dl,conli1u-
PENDANTS have tue power TO cnter judgment OF
discontinuance and for costs. FourthTbar
whether such Judgment be entered OF tD,s court
has, BY the orders entered IN this action and referred
to in the preceding opinion, finally determined in
this that the paintIils not entitled 10 The
Injunction obtained; and nth. that the defendants
are entitled to order OF reference 70 the
damages sustained ny them IA consequence OF such
injunction having been Issued.
The Leslie Divorce Case -Ordrr Of Judge
Brady Yachting tho Order oi Discontinu-
nuce.
Frank Leslfs Us. Sarah Anne Lssie.---0n reading
the pleadings IN this action, and on reading and m
ing the order To show cause, dated May 81, 1859,
why the order of dlscontinuance entered ex parte
and dated the oath Of May, 1869, should not be
vacated anu set aside, and the afdavils OF
Cnecvor, The stipulation dated May &c, 1869,
g,vinS piailtln thoe to reply, notice counter
m nsIS ssidSs!ipuIs!lon dated May D. 1859; the
dollars for costs on dlscontlnuance and on reading
inc ordor o. the Special Torn, dated July 2j 1906
xIau.ing snm0ny and counsel fee ia this action, and
the order Of the General Term affirming said order,
dated MAY ls 1902 and said order OF diacontinuance,
Auu "stcA A.ooiiHk AiT Anur9M BOaruln2n, OF COuns
gel for the defendant IN support OF sad motion and
NJ. Malcolm Campbell aud Mr.. john NcKson. OF
counsci lor tne plaintiff In opposition theretQ Is,
the DESCENDANT. ordered that the said order X DIS
continuance Of tho Gath day OF NAY 1890 he ana
dollars cosls OF this motion to tho defendant.
MOVING Day with the Court.
To-day the archives, DO, Of the Court Of Common
Pleas ere being moved Into the splendid ana ia.
oue yooms allotted 70 the business q thas Court a.