Block v. Ottenberg

The order should be affirmed. Admitting that the authorities abundantly establish a plaintiff’s right to discontinue an action whenever after issue joined he shall determine so to do, the authorities are equally clear that the rule is subject to successful objection on the part of a defendant where either a counterclaim has been interposed, “ or when equities exist which might be defeated, or a defendant otherwise prejudiced, if the leave to discontinue was granted.” Telephonine Co. v. Douthitt, 115 App. Div. 362. The answers set up an affirmative defense, sufficient, if alleged by way of complaint, to hold the plaintiff *648for conversion of the very note upon which he seeks to recover in this action. The affidavit of Mr. Elkan, the facts of which are not denied, shows that-the plaintiff became possessed of the note under circumstances which make such possession wholly unlawful. The court, very properly in the circumstances, exercised its discretion in denying the leave asked for by plaintiff. In Matter of Petition of Butler, 101 N. Y. 309, Judge Pinch said: “A party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties have accrued and injustice will be done to them, by- permitting the discontinuance." The opposing papers satisfactorily show that substantial rights have accrued and that injustice would be done by granting the motion. We see no reason for interfering with the order made by the court below.

Gildebsleeve and Giegebioh, JJ., concur.

Order affirmed, with costs and disbursements.