Johnston v. Garside

Decided July 8, 1893

New York Supreme Court · decided 1893-07-08

Action by David J. Johnston against John Garside, as mayor, William J. Dickey, and Michael J. Daley, to restrain defendants from acting as members of the board of fire commissioners of the city of Cohoes. From an order granting plaintiff’s motion to dismiss the action without costs, defendants appeal. The affidavit filed in support of plaintiff’s motion is as follows: “Charles B\ Doyle, being duly sworn, says: First. That C. H. Sturges is plaintiff’s attorney. Second.

Relies on Smith v. Banker

Affirmed · Decided 1893-07-08

PER CURIAM.

¶1The action, was an equitable one, and upon that ground, as well as the change in the law, by which the parties were legislated out of office before the trial of the action, the court at special term could allow a discontinuance without costs. The application was addressed to the discretion of the court below, and we are of the opinion that no such an abuse of discretion, or misapprehension of the facts, or of the rights of the parties, appears in the case, as would justify a reversal of the .order. Crosby v. Fitzpatrick, 23 N. Y. Wkly. Dig. 35; Morss v. Hasbrouck, 13 N. Y. Wkly. Dig. 393; Byron v. Durrie, 6 Abb. N. C. 135; Smith v. Banker, 3 How. Pr. 142.

¶2The order should be affirmed, with costs and disbursements.