Leslie v. Leslie

Decided January 15, 1871

New York Court of Appeals · decided 1871-01-15

In December, 1866, the plaintiff commenced an action against the defendant for divorce, in the New York superior court, which, in February, 1867, he discontinued. On January 16, 1868, he commenced this suit, in the New York common pleas. A motion for alimony and counsel fees was made, and on July 33, 1868, granted. From this the defendant appealed, obtaining a stay of proceedings. The order was, on May 18, 1869, affirmed, at general term.

Decided 1871-01-15

By the Court.—Church, Ch. J.

¶1We are all of opinion that the order appealed from must be affirmed. Under the circumstances of the case, the plaintiff had no right to determine for himself upon what terms he could discontinue and enter an ex-parte order of discontinuance on the payment of costs. The terms on which leave to withdraw his suit should be granted, are matters to be determined by the court below. We express no opinion on that subject. We merely decide that the order appealed from must be affirmed with costs.

¶2Order affirmed, with costs.