Winans v. Winans

• Decision Date: 14 January 1891
• Citation: 124 N.Y. 140,26 N.E. 293
• Parties: WINANS v. WINANS.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 140

26 N.E. 293

WINANS

v.WINANS.

Court of Appeals of New York, Second Division.

Jan. 14, 1891.

Appeal from a judgment of the general term of the superior court of the city of New York affirming a judgment in favor of defendant entered June 17, 1886, upon the report of a referee, in an action for absolute divorce. The notice of appeal also brings up for review an order of the special term denying plaintiff's motion for leave to discontinue the action, without payment of costs or allowance, or on such terms as the court should impose.

Frederick Wm. Sherman, for appellant.

James C. Carter, for respondent.

PARKER, J., ( After stating the facts as above.)

The complaint averred that the parties intermarried on or about the 31st day of May, 1871, at the city of New York; that subsequently he committed adultery; and demanded judgment that the bonds of matrimony between them be dissolved, and she be awarded alimony and costs of the action. The answer put in issue both the averments of marriage and adultery. Subsequently, issues were duly prepared and settled for trial by a jury, but before the cause was reached upon the calendar the parties stipulated that it be referred. The court, approving of such action, designated by order a referee to hear and determine the issues. The referee, after the evidence was submitted, found as facts: ‘(1) That the plaintiff was not on the 31st day of May, 1871, or at any other time, at the city of New York or elsewhere, married to the defendant; (2) that the plaintiff did not at the time and place stated in the complaint commit adultery with the person named in the complaint; and, as a conclusion of law, ‘that defendant is entitled to judgment against the plaintiff; that the complaint be dismissed upon the merits, with costs.’ The general term affirmed the judgment entered thereon; and the findings, therefore, are not subject to review in this court, inasmuch as they were supported by evidence. The appellant has called our attention to several exceptions taken to rulings of the referee in the admission and rejection of testimony. We have given to each of them careful consideration and have determined that no error was committed justifying a reversal. Two other questions are pressed upon our attention which we shall now consider.

1. After one hearing before the referee, at which the plaintiff was partially examined, a motion was made in her behalf to vacate the order of reference, to the making of which she had originally consented, and send the case to the jury. This motion was denied, and, if it be assumed that plaintiff's appeal brings up the order entered thereon, it cannot avail her here. It did not affect a substantial right. Once she had the right to demand a trial by jury, but that right was gone before the making of the motion, at the instance of her counsel, and by her own consent. She was not, therefore, before the court demanding a right, but petitioning for a favor, praying to have restored to her that which she had waived because at the time she regarded it beneficial to her interests to do so. The court, in the exercise of its discretion, refused to relieve her from the consequences of her own act; and such refusal, under the circumstances disclosed, will not be reviewed by this court.

2. After the making of the motion to vacate the order of reference, the plaintiff moved the court for leave to discontinue the action, without the payment of costs or allowance, or on such terms as the court may decree. The denial of that motion the plaintiff assigns for error. She asserts that, while the court had power to impose terms as a condition of discontinuance, it was without authority, under the circumstances disclosed by the papers before it, to prevent it; that the absolute right to discontinue resided in the plaintiff, the court being merely vested with the discretion to determine what, if any, terms should be imposed, and this right may be made available at any stage of the action, even after trial is actually begun. Carleton v. Darcy, 75 N. Y. 375, was an action of ejectment. The plaintiff recovered judgment, and was put in possession of the premises. Defendant paid the costs, and took a new trial, under the statute. Thereupon, plaintiff, still retaining possession, moved for leave to discontinue on payment of costs. The motion was denied, and on appeal this court said: ‘That court has refused his request, and on appeal from the order he claims that he has the right, of his own head, to discontinue his action on those terms. But there is no valid discontinuance of an action without an order to that end. That order, whether ex parte or on motion, must be an order of the court, and, as its order, within its control. It is true, as a general rule, that a plaintiff may, upon the payment of the costs of the defendant, enter an order of discontinuance of the action, and give notice thereof, and that the cause will be thereby discontinued; yet the court has always kept and exercised the right to control such an order, as well as any other order put upon its records. And where circumstances have existed which have made it inequitable that the plaintiff should, of his own head and without terms, discontinue his action, they have refused his motion to do so altogether, or except on terms; or, when he has entered an order ex parte, have opened it, and made it conform to what was proper under the circumstances. * * * So that the court to which the motion for leave to discontinue was addressed had a discretion, under all the circumstances of the case, whether or not to refuse it.’ The rule thus enunciated has been frequently alluded to and applied by the courts. Carleton v. Darcy, 75 N. Y. 375;In re Water-Works Co., 85 N. Y. 478;Van Alen v. Schermerhorn, 14 How. Pr. 287;Cockle v. Underwood, 3 Duer, 676;Crosby v. Fitzpatrick, 23 Wkly. Dig. 35.But an application for leave to discontinue is addressed to the legal, not the arbitrary, discretion of a court, and it cannot capriciously deny it. This court, in Re Butler, 101 N. Y. 307, 4 N. E. Rep. 518, reversed an order denying leave...