Schenck agt. Fancher & Long. SUPREME COURT. E. T. SCHENCK agt. FANCHER & LONG. After service of a copy of the complaint, and no answer setting up a counterclaim is put in, the plaintiff has the right to discontinue his action without leave of the court. But this cannot be done by merely serving a notice of discontinuance; an order must also be entered. (See to the same effect Averill agt. Patterson, 10 How. Pr. R. 85.) If an action is discontinued before service of a notice of appearance, although after an actual retainer, the attorney of the defendant is not entitled to any costs. (This follows the case in the court of errors of Smith agt. White, 7 Hill, 520.) Fonda Special Term, June, 1856. MOTION by defendants to dismiss complaint, for unreasonable neglect in proceeding in the cause. The action was commenced by service of a summons on the defendant Fancher, unaccompanied by a copy of the complaint. The defendants retained an attorney, but before service on the plaintiff of a notice of appearance, although after the retainer, the plaintiff served on the defendant Fancher, a notice of the discontinuance of the suit, without, however, entering an order of discontinuance. The defendants' attorney served, by mail, on the plaintiff a demand of a copy of the complaint; and, after waiting forty days, made this motion. DUDLEY & PLANTS, for defendants. PAIGE, Justice. Where a copy of the complaint is not served with the summons, and the plaintiff fails to serve a copy of the complaint within twenty days after a written demand, the defendant may at once move, under § 274 of the Code, for dismissal of the complaint. (§ 130 of Code, 5 How. Pr. R. 124.) In this case, as no answer had been put in setting up a coun Schenck agt. Fancher & Long. ter-claim, the plaintiff had the right to discontinue his suit without leave of the court. But this could not be done by merely serving a notice of discontinuance, without the entry of a rule or order to that effect. It was decided, in Averill agt. Patterson, (10 How. Pr. R. 85,) that the practice of requiring the entry of a rule of discontinuance, which prevailed before the adoption of the Code, was still in force. (See § 469 of the Code, and rule 90.) The plaintiff in this case, having omitted to enter an order of discontinuance, his notice to that effect was ineffectual to discontinue the suit. The defendant Fancher is, therefore, regular in making this motion. If the plaintiff had entered an order of discontinuance, the defendant's attorneys would not, under the decision of the court of errors in Smith agt. White, (7 Hill, 520,) have been entitled to costs. That case decides, that if a suit is discontinued before service of a notice of appearance, although after an actual retainer, the attorney of the defendant is not entitled to any costs. A contrary decision was made in Foster agt. Bowen. (1 Code Rep. N. S. 236; Code, Voorh. 4th ed. 509.) An order for discontinuance must be entered, and the plaintiff must pay the defendants' attorneys' costs, allowed by the 307th section of the Code, and $7 costs on this motion. Welch agt. Hazelton. SUPREME COURT. ALMOND WELCH agt. SIDNEY S. HAZELTON. An answer of new matter which does not state facts sufficient to constitute a defence, is always insufficient, and may be demurred to. The provisions of the Code, in relation to counter-claims, are much more comprehensive than the Revised Statutes relating to set offs. That is, in an action arising on contract, by the 149th and 150th sections of the Code, the defendant may avail himself of any other cause of action arising also on contract, and existing at the commencement of the action, by way of a counter-claim; whereas by the Revised Statutes the set off must be a demand for real estate sold, or for personal property sold, or for money paid, or services done; or if it be not such a demand, the amount must be liquidated or capable of being ascertained by calculation. By the Revised Statutes, the set off can only be allowed in actions founded upon demands which could themselves be the subject of set off according to law. And if the defendant neglect to plead or give notice of any such set off, he shall be for ever thereafter precluded from maintaining an action to recover the same or any part thereof. Now, where the answer of the defendant alleges that before the commencement of the action, he commenced a suit against the plaintiff, by summons, for the recovery of a certain demand due from the plaintiff to the defendant upon contract, before, &c.; that such suit is still pending, and that the cause of action in the plaintiff's complaint accrued to him, and might have been set off in the suit commenced by the defendant against the plaintiff; it is insufficient as a defence, because it does not appear that the defendant's previous suit was one founded upon demands which could themselves be the subject of set off. Alleging that it was founded on a demand due from the plaintiff to the defendant upon contract, will not do; for there are a large number of demands on contract which would not themselves be the subject of a set off under the Revised Statutes. There is nothing in the Code requiring a defendant to avail himself of a counterclaim in an action, or in default thereof be precluded from maintaining an action. The Revised Statutes, in the cases specified in it, must govern this. Genesee Special Term, April, 1857. DEMURRER to answer. The action is upon a promissory note. The defendant in his answer alleges, that before the commencement of this action on, &c., he commenced a suit against the plaintiff, by summons, VOL. XIV. 7 LAW SCHOOL ART. Welch agt. Hazelton. for the recovery of a certain demand due from the plaintiff to the defendant, upon contract, before John G. Bixby, one of the justices of the peace of, &c.; that such suit is still pending, and that the cause of action in the plaintiff's complaint accrued to the plaintiff, and might have been set off in the suit commenced by the defendant against the plaintiff, and is still pending before the justice. The plaintiff demurred to this answer. BISSELL & BALLARD, for plaintiff. BANGS & SUMMERFIELD, for defendant. MARVIN, Justice. The demurrer is well taken. The answer does not state new matter constituting a defence. The Revised Statutes authorize, in certain cases and under certain circumstances, a defendant to set off demands which he has against the plaintiff. (2 R. S. 234, § 48.) By the third subdivision of this section the set off must be a demand for real estate sold, or for personal property sold, or for money paid, or services done; or if it be not such a demand, the amount must be liquidated, or capable of being ascertained by calculation. By the 5th subdivision of the section, the set off can only be allowed in actions founded upon demands which could themselves be the subject of set off according to law. By § 55, if the defendant neglect to plead or give notice of any set off, which, according to the preceding provisions,, might have been allowed to him, on the trial of the cause, he shall be forever thereafter precluded from maintaining an action to recover the same, or any part thereof. The answer should have stated facts, to bring the case within the provisions contained in § 48: that is, it should have stated facts showing that the action brought by the defendant against the plaintiff in the justice's court, was an action founded upon demands which could themselves be the subject of set off. The defendant alleges that his action in the justice's court was upon contract; but he states no facts to show the nature of the contract. It may have been an action to recover dam Welch agt. Hazelton. ages for a breach of warranty in the sale of a horse, or for a failure to perform an agreement to clear land, or erect a house, in which the damages were not liquidated, nor capable of being ascertained by calculation. If such was the nature of the action in the justice's court, the present plaintiff could not, in that action, by the Revised Statutes, set off the demand in his present action; and he is only precluded by § 55 from maintaining an action to recover any set off which, by the preceding provisions of the statute, might have been allowed to him. An answer of new matter which does not state facts sufficient to constitute a defence is always insufficient, and may be demurred to. The provisions of the Code, in relation to counter-claim, is much more comprehensive than the Revised Statutes relating to set off. Thus by §§ 149, 150, the defendant, in an action arising on contract, may avail himself of any other cause of action arising on contract, and existing at the commencement of the action. It may well be that the present plaintiff could have availed himself of his present cause of action, by way of counter-claim, in the action commenced against him by the present defendant, in the justice's court; but there is nothing in the Code requiring him so to avail himself, or, in default thereof, that he should be precluded from maintaining an action. We must go to the Revised Statutes for the preclusion from maintaining the action; and such preclusion can only be applied to the cases specified in the Revised Statutes. Judgment for the plaintiff upon the demurrer to the answer. |