Opinion
March, 1910.
Charles A. Oakes, for plaintiff.
Charles C. Burnstine, for defendant-corespondent (Hartsell).
In this action the husband, the plaintiff, sued his wife for divorce. The wife set up a counterclaim naming a lady living with her husband as corespondent. Plaintiff and defendant now come to court and ask leave to discontinue, but corespondent says that she has been dragged into the domestic quarrels of plaintiff and defendant, accused of immoral conduct and branded in the newspapers. The corespondent asks as a condition of allowing discontinuance that defendant should write a letter exonerating her from the charge made, or that defendant be compelled to pay an extra allowance to corespondent to compensate her for her expense in hiring counsel and preparing to defend her good name in the court. The defendant refuses to write a letter, and the remaining question is, can the court impose the payment of an extra allowance on defendant? In Schlegel v. Church, etc., 124 A.D. 502, an allowance on discontinuance was refused. But there all that appeared was that a complaint was served, a general denial put in and that plaintiff moved for leave to discontinue; as the court said "there was no interest of the defendant changed by the bringing of the action." In Kilmer v. Evening Herald Co., a plaintiff sued for libel, demanding $25,000 damages, and when there was proof that there was preparation for trial the court granted an extra allowance to defendant as a condition to allowing plaintiff to discontinue his action. In Matter of Waverly Water Works Co., 85 N.Y. 479, 482, the court said: "When an action or special proceeding has been commenced the defendant may have an interest that it shall be conducted to its termination, and in such case the court can protect such interest by refusing to permit the action or proceeding to be discontinued, or it may impose such reasonable terms as a condition of discontinuance as will fully protect or indemnify the defendant." I certainly think that this lady who has been named in this action as corespondent has an interest that it shall be conducted to its termination, or if not so conducted that she shall be indemnified by the person who has unjustly named her. In Winans v. Winans, 124 N.Y. 140, the court said, in referring to a motion to discontinue a divorce action, "The rights of the party to the record are not alone to the considered, the public is regarded as a party and must be treated as such by the court. Because of the public interest the court has been invested with a wider discretion in the control of the course of procedure in matrimonial actions than in others." I, therefore, will grant the motion for leave to discontinue on payment by defendant to this corespondent, Hartsell, of $500. Otherwise leave to discontinue refused.
Ordered accordingly.