Opinion
July, 1899.
Krum Grant, for plaintiff.
Hull Flanigan, for defendant.
It is conceded that the old chancery practice authorized the entry of a rule or order by a clerk of that court discontinuing an action on the application of the plaintiff's attorneys and proof that there had been no appearance in the action by the defendant. That practice has undoubtedly been continued in the Supreme Court, at least in some parts of the State, since the adoption of the Code of Procedure and the present Code of Civil Procedure, by entering such orders with the clerks of the several counties acting as clerks of the court. The attorneys for the defendant insist that a county clerk has no power other than as prescribed by law and that there is no law in any way expressly authorizing a county clerk to enter an order in an action in the Supreme Court without special direction of the court; and were it not for the fact that the practice of entering orders of discontinuance as stated with county clerks, has been frequently recognized by the courts of this State since the abolition of the Court of Chancery, I would feel constrained to hold that a county clerk, acting as a clerk of the Supreme Court, has no authority in any case to enter such an order. Among the reported cases since the adoption of the Code recognizing the practice as stated are the following: Bedell v. Powell, 13 Barb. 183; Cooke v. Beach, 25 How. Pr. 356; Cockle v. Underwood, 1 Abb. Pr. 1; Seaboard Roanoake R.R. Co. v. Ward, id. 48; Schenck v. Fancher, 14 How. Pr. 95; Cole v. McGarvey, 6 Civ. Pro. 306; Averill v. Patterson, 10 N.Y. 500; Carleton v. Darcy, 75 id. 376; McBratney v. Rome, Watertown Ogdensburg R.R. Co., 87 id. 467.
I call attention especially to two of the authorities mentioned as clearly sustaining the statements in regard to the practice made by me herein. The case of Averill v. Patterson was decided after the Court of Chancery had been abolished, and while we were under the practice laid down by the Code of Procedure. In the opinion in that case Judge Mason uses this language:
"The long-settled practice of entering rules of discontinuance, is certainly consistent with the practice under the Code of Procedure, 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. Such is the construction put upon this section and this rule by the supreme court in Bedell v. Powell, 13 Barb. 183-185. There is very great fitness in this practice." I find on examination that although section 469 of the Code of Procedure was repealed by chapter 217 of the Laws of 1877, the rule of the Supreme Court referred to remains in substantially the same form at the present time. In 1882 the Court of Appeals in the case of McBratney v. Rome, Watertown Ogdensburg R.R. Co., 87 N.Y. 467, refers with approval to Averill v. Patterson. I quote from the opinion as follows: "The claim that the order was irregularly entered, in that it was entered ex parte, as of course, without application to and the special direction of the court, is decided adversely to the appellants in Averill v. Patterson 10 N.Y. 500." There has been no change in the Constitution, the statutory law, or the Supreme Court rules since the decisions of the Court of Appeals in Averill v. Patterson and in McBratney v. Rome, Watertown Ogdensburg R.R. Co., which materially affects the present discussion, and I conclude that the practice referred to still has the sanction of the highest court of this State. Judge Folger, in Fisher v. Gould, 81 N.Y. 228, in speaking of the practice of the courts, uses this language: "Doubtless all matters of practice are, in the first instance, in the discretion of the courts in which questions of practice arise, when there are no statutory provisions or provisions by general rules of court that govern the cases. Yet matters of practice come after a while to be governed absolutely by the custom of the courts; and what is found in any case to have been held by authoritative decisions to be the custom of the courts, becomes thus, the way in which discretion must go."
This action is not now pending. It has been discontinued. An order discontinuing an action that has already been discontinued would be inconsistent in terms. The relief demanded by the plaintiff should be denied. I understand the answer in the second action between the parties herein sets up as a separate defense the former action (this action) pending. The validity of the order of discontinuance signed and entered by the clerk can be squarely raised by a motion to strike out of the answer in the second action such separate defense as sham. If I am right in my conclusion herein, such separate defense is false and should be stricken out on motion. Hallett v. Hallett, 10 Misc. 304. For the reasons stated, and also for the further reason that there is no action pending in which costs can be collected, this motion is denied, without costs.
Motion denied, without costs.