Horatio Averill and William J. Averill agt. Theron Patterson, 10 How. Pr. 85

By the court—Mason, J. I will consider these objections in the reverse order in which they are stated, and as to the fourth and last objection, it is not well taken. The rule is well settled with us, that upon a plea or answer of the defendant, .showing the pendency of the first suit, it is competent for the plaintiff to discontinue the first suit, and a replication of such discontinuance is a good answer to the plea. (Marston agt. Lawrence & Dayton, 1 John. Ca. 397; 1 Barn, and C. 649 ; Beals agt. Cameron, 3 How. Pr.

R. 414; 4 Hill’s R. 166.) The third objection, that the reply does not allege that the costs of the former suit were paid, is not well taken. The practice seems to have been well settled with us, that a rule or order of discontinuance entered after the appearance of the defendant is a nullity without the payment of costs. (10 J. R. 367; 1 W. R. 13; 12 W. R. 191; 4 Hill’s R. 167; 7 W. R. 511; 7 Hill’s R. 521.) It was expressly held, however, by the court of dernier resort in this state, in the case of Smith agt.

White, (7 Hill’s R. 520,) that the rule of discontinuance was effective to discontinue the suit without the payment of costs, if entered before the defendant had appeared in the suit. In the case under consideration there is nothing in the pleadings to show that the defendant ever appeared in that suit, and I infer from the reply that there was no appearance in the suit, as the reply alleges, that the notice of discontinuance was served on the defendant himself instead of an attorney.

The remaining objection is, that a notice of discontinuance is ineffectual to discontinue the suit without a rule or order to that effect entered in the cause. The practice was well settled in the supreme court of this state up to the time of the revolution produced by the Code, that a rule of discontinuance must be entered. It was indispensable to the discontinuance of the cause, and without it all else was ineffectual to discontinue it. (Burril’s Pr. 148, 383; Graham’s Pr. 603, 604; 10 J. R. 367; 1 W. R. 13; 7 W. R. 511; 12 W. R. 191; 4 Hill’s R. 167; 13 Barb.

R. 185.) The Code of Procedure makes no specific provision on the subject, nor do the present rules of the court. The 469th

section of the Code, however, provides that when the rules and practice of the court, in civil actions, are consistent with it, they shall be in force, subject to the power of the court, to relax, modify, or alter the same; and-by the 90th rule of the court, it is provided that where no provision is made by statute, or by these rules, the proceedings shall be according to the customary practice as it has heretofore existed in the court of chancery and supreme court. The long settled practice of entering the rule of discontinuance is certainly consistent with the practice under the Code, and the continuance of the practice is, it seems to me, preserved in the most explicit terms- by the 469th

section of the Code, and the 90th rule of the supreme court, and such is the construction put upon this

section of the Code, and this rule of court, by the supreme court, in Bedell agt.' Powell. (3 Bari. R. § 183; see pp. 185,186.) . There is, it seems to me, very great fitness in this practice. The idea of . discontinuing a suit by the bare service upon the party, or his attorney, of a notice, is certainly a very loose and dangerous practice to sanction.

The notice of discontinuance may be served upon the defendant personally, before any appearance by attorney in the cause, and the notice may be served by the plaintiff himself, and this notice of discontinuance may be- lost, and the plaintiff proceed to judgment in the action, and then comes a contest between the parties, as to whether the judgment shall be set aside, and this, of course, must be determined upon affidavits and upon the oath of the parties, and which offers the strongest temptation to perjury ,on the part of the plaintiff to hold on to a judgment which he has already obtained, and if he shall deny on oath such service, the defendant may be in many cases remediless, and such a judgment may be procured by the plaintiff after service of his notice of discontinuance, and the defendant know nothing of it, and if the defendant should chance to die before the plaintiff seeks to enforce his judgment, I do not see how, in many cases, his personal representatives could ever get rid of the judgment.

There is no hardship in requiring the plaintiff to enter an order, where he desires to discontinue his action, and then the records of the court will always show the fact, and will leave no opportunity for dispute between the parties. The clerk of each county in the state is required, by rule 4 of the court, to keep a book for the entry of such orders, and' I think we should require the order to be entered in all cases.

If I am right in the views above expressed, that it was necessary that an order should be entered to discontinue the first action, then the reply in this case is bad, as no such thing is alleged in the reply, and the court below erred in overruling the demurrer. If, however, my brethren should be of opinion that the practice of formally entering a rule or order discontinuing the suit is abolished by the Code, then the reply is good, and the court below were right in overruling the demurrer.

The court being of opinion that the rule or order of discontinuance must still be entered, the judgment of the court below, overruling the demurrer, must be reversed, and judgment given for the defendant on the demurrer.