Tremain v. Guardian Mutual Life Insurance , 18 N.Y. Sup. Ct. 286 ( 1877 )

Barnard, P. J.:

The plaintiff brought this action “ on behalf of himself and all others interested in the Guardian Mutual Life Insurance Company, either as creditor or stockholder.” The plaintiff settled his own claim with the defendant and agreed to discontinue the action. Upon apiffying to his attorneys for a consent to discontinue, they declined, saying that they had other clients similarly situated with plaintiff, but they gave a consent to substitute another attorney. The old attorneys entered an order joining three persons as co-plaintiffs, without notice to any one, and after giving consent to substitute, and the defendants, on the consent of the substituted attorney, entered the order of discontinuance. Upon this consent to discontinue, by the new attorney, there was indorsed a consent, by the old attorneys, to waive notice of motion for the order thereon. The new plaintiffs moved to vacate the order of discontinuance, and the motion was denied.

The plaintiff had the right to settle and discontinue his action at any time before the rights of others were affected by his acts. This seems to be well settled in this State. In Edmiston v. Lyde (1 Paige, 636) the chancellor says that the parties standing in the same situation with the plaintiff may come in under the decree and contribute to the expense of the suit. In Innes v. Lansing (7 Paige, 538) it was held that a creditor who files a bill in behalf of himself and all others, may discontinue his suit at any time before decree, for “ the benefit of himself and the other creditors,” without the consent of the other creditors. In Matteson v. Demarest (1 Robt. Supr. Ct. R., 717) it was held that this rule had not been affected by section 119 of the Code.

Order should be affirmed with costs and disbursements.

Gilbert, J., concurred; Dtkman, J., not sitting.

Order .affirmed, with costs and disbursements.