Opinion
November 4, 1921.
George S. Brengle of counsel [ Harrington, Bigham Englar, attorneys], for the appellants.
Francis Goertner of counsel [ Haight, Smith, Griffin Deming, attorneys for Diamond Fuel Company, Inc.; Stires Barron, attorneys for John B. Johnston], for the respondents.
This action was commenced by the personal service of a summons, with notice that, upon defendants' default to appear and answer, judgment would be taken against them for the sum of $20,347.89 with interest from December 7, 1920. The defendants appeared by separate attorneys and demanded the service of copies of the complaint and all other papers in the action. Before any complaint had been served or filed in the action, the plaintiffs moved for leave to discontinue the action upon payment of costs of the action to date and the costs of that motion. Before the return date of the notice of motion, the defendant Diamond Fuel Company, Inc., served a paper which it called an answer wherein it was stated that the said defendant, "answering the summons with notice, alleges upon information and belief: First. It denies that it is indebted to the plaintiffs in the sum of $20,347.89 alleged in the summons with notice to be the amount for which the plaintiffs demand judgment, or in any sum whatsoever." The answer also contains three counterclaims "to the cause of action set forth in the summons with notice." The plaintiffs' motion for leave to discontinue the action was denied. It is well settled that "ordinarily a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court. 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." ( Matter of Butler, 101 N.Y. 307, 309.) It is also well settled that where a complaint has been served and an answer containing proper counterclaims interposed, the plaintiff will not be allowed to defeat, by a voluntary dismissal of his complaint, the defendant's recovery on his counterclaim.
In the present case no complaint had been served, nor even drawn, when plaintiffs made their motion. No rights whatever had accrued to the defendants. There had been no lis pendens filed, nor attachment levied. No injustice had been done. There was, therefore, no discretion in the court. The motion for a dismissal should have been granted upon the payment of costs. The alleged answer was a nullity. There is no such pleading as an answer to the notice served with the summons. The notice discloses no facts constituting a cause of action, and there is no issue tendered thereby. The right to counterclaim in an answer is qualified by the nature of the cause of action disclosed in the complaint. (Code Civ. Proc. §§ 501, 502.) Until a complaint was served no right to answer existed. ( Nosrep Corporation v. Clinton Securities Corp., 193 App. Div. 878.)
It would have been entirely proper for the learned justice to have granted the motion to strike out the answer. In deference to the decision of the justice who had denied the motion for leave to discontinue, this motion was denied with leave to renew after the decision of this court on the appeal from the former order.
The order denying plaintiffs' motion to strike out the answer will be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. The order denying plaintiffs' motion for leave to discontinue will be reversed, with ten dollars costs and disbursements, and the motion granted.
CLARKE, P.J., DOWLING, SMITH and GREENBAUM, JJ., concur.
Order denying motion to strike out answer reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order denying motion for leave to discontinue reversed, with ten dollars costs and disbursements, and motion granted.