mond, 1 Paige, 300; and see Hammersley v. Barker, 2 id. 372; Pennell v. Wilson, 5 Rob. 661). And a plaintiff under the section allowing him to amend of course (section 172), cannot amend by leaving out the name of a defendant, so as to discontinue as against him, without costs (Chase v. Dunham, 1 Paige, 572). Plaintiff not allowed to discontinue without costs, because the defense is the statute of limitations (Houseman v. Rosenfield, 18 Abb. 379). a. Where plaintiff, in bad faith, prevented defendant from making a tender before suit, for which he was prepared,-held that defendant was entitled, on payment into court of the amount claimed, to have a discontinuance without costs (The People v. N. Y. Superior Court, 19 Wend. 104). b. Plaintiff allowed to discontinue without costs where defendant is sent to the State prison or is insolvent (Lackey v. Mc Donald, 1 Cai. 116; Hart v. Story, 1 Johns. 143; Steinback v. Hallett, 1 Johns. 141); but query? if, on the ground of insolvency, unless defendant has been discharged in insolvency (Wheaton V. McGlade, 1 Wend. 34). c. On the death of a sole plaintiff, pending an action, his executors may be allowed to discontinue without costs, on showing that the defendant is insolvent (Banta v. Marcellus, 2 Barb. 373). d. Where, pending an action to foreclose a mortgage, a witness was examined de bene esse, and his testimony was considered a defense to the action, the witness having died, plaintiff was not allowed to discontinue, except on the terms of paying costs and stipulating that in any future action for the same cause, the testimony of the deceased witness might be read (Young v. Bush, 36 How. 240). e. Where a consul is inadvertently sued, jointly with other defendants, the plaintiff may in certain cases discontinue without costs as to such defendant Taaks v. Schmidt, 19 How. 413). f. In an action on two promissory notes made by J. Krause & Brother, the parties intended to be sued were Isidore Krause and Henry Krause; but the defendants were in fact described as Isidore Krause and Moritz Krause. The summons were served on Isidore Krause only, but one Moritz Krause appeared voluntarily, and put in an answer denying that he was a partner of Isidore Krause. On motion, the plaintiff was allowed to discontinue as to Moritz Krause, and amend the summons and proceedings, by substituting the name of Henry for Moritz, without costs (Waterbury Leather Manuf. Co. v. Krause, 9 Abb. 175, note). g. Where a plaintiff recovers costs against one of several defendants, defending jointly, he may enter a discontinuance as to the others without payment of costs (Stafford v. Onderdonk, 8 Barb. 99). h. If, by the plaintiff's own act, the object of the action is defeated, he cannot be permitted to discontinue without costs (Hammersley v. Barker, 2 Paige, 372). i. Where a suit is commenced on the authority of a reported decision, and such decision is afterwards reversed or overruled, the courts will usually, and where application is made promptly, after knowledge of such reversal or overruling, relieve the party who relied on such reversed or overruled decision, by permitting him to discontinue his action without costs (Robinson v. Rosher, 1 You. & Col. 7). And in (Sunney v. Roach, 4 Abb. 16), the New York common pleas permitted an appellant from a judgment of the marine court to discontinue without costs; the court of appeals, having, after the appeal was taken, decided contrary to what had previously been held by the common pleas, that no appeal could be maintained. And a discontinuance of an appeal, without costs, was allowed where the law had been changed by statute after the appeal taken (Gale v. Wells, 7 How. 191; Porter v. Jones, id. 192). j. Discontinuance on ground of defendant's insolvency (Ford v. Stock, 1 Dowl. Pr. Cas. N. S. 763). k. Discontinuance not a bar to a new action.-Where, before trial, an order is entered, discontinuing or dismissing an action, such discontinuance or dismissal does not bar a new action for the same cause (Earl v. Campbell, 14 How. 330). a. Discontinuance is a step in the cause.-An order for a discontinuance is a step in the cause, and therefore a violation of a rule staying the proceedings (Murray v. Silver, 1 New Prac. Cas. 256). 6. Effect of discontinuance.—A discontinuance terminates the action for all purposes, and operates to dissolve an injunction (Hope v. Acker 7 Abb. 308). It is a final determination of the rights of the parties to the action within § 245 (Crockett v. Smith, 14 Abb. 62). c. Discontinuance after counter-claim interposed.—After a counter-claim has been set up and admitted of record [i. e., not replied to], the superior court will not allow the plaintiff to discontinue as a matter of course; special grounds must be shown in favor of the application; he must make a case, showing such an interference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendant (Cockle v. Underwood, 1 Abb. 1; 3 Duer, 676). d. In the supreme court (1st district), it has been held that the right of a plaintiff to discontinue at any time before judgment, formerly existed, and is not abrogated by the code, and that even where the defendant sets up a counter-claim the plaintiff may discontinue of course, before the expiration of the time limited for a reply. They distinguish their decision from that in the superior court; the application to discontinue in that case not having been made until after the time to reply had expired, and when, by not replying, the plaintiff had admitted of record the counter-claim (Seaboard and Roanoke R. R. Co. v. Ward, 1 Abb. 47; 18 Barb. 595; see Wilson v. Wheeler, 6 How. 49; Rees v. Van Putten, 13 How. 258; Pacific Mail S. S. Co. 7 Abb. N. S. 37). Leave to the plaintiff to discontinue should be refused, where the defendant, by a discontinuance, would lose his remedy on his counter-claim, as where such remedy would be barred by the statute of limitations (Van Allen v. Schermerhorn, 14 How. 287). e. In the New York common pleas it was held at general term (Oaksmith v. Sutherland, 4 Abb. 15; 1 Hilton, 265), that the fact that the defendant has answered, setting up counter-claim, does not preclude the plaintiff from discontinuing before reply or demurrer to the counter-claim or the expiration of the time to reply. They, as did the supreme court, distinguish the case from that of Cockle v. Underwood (supra), by the fact that the application for leave to discontinue was made before the expiration of the time to reply. ƒ. Discontinuance in action to dissolve partnership.-Semble, the court will not permit a suit for the dissolution of a partnership and the settlement of the partnership debts, to be discontinued by act or consent of the parties. There must be a special application to the court, and notice to the partnership creditors (Rutter v. Tallis, 5 Sand. 612). g. Discontinuance in foreclosure actions.—In a foreclosure suit, the court will permit the plaintiff, on receiving his debt and costs, to dismiss his suit, without paying costs to junior incumbrancers, who have appeared to protect their rights. So as to the mortgagor personally liable for the debt, who has conveyed the mortgaged premises subject to its payment (Gallagher v. Egan, 2 Sand. 742). In an action to foreclose a mortgage, where the principal has become due, in consequence of default in payment of interest, within the time prescribed therefor, the court has not the power to stay or discontinue the action on payment of the interest due (Hunt v. Keech, 3 Abb. 204; Ferris v. Ferris, 28 Barb. 29; see Lynch v. Cunningham, 6 Abb. 94; Bartow v. Cleveland, 7 Abb. 339; Pratt v. Ramsdell, 16 How. 59; 6 Abb. 340, note; Thurston v. Marsh, 14 How. 572; 5 Abb 389). h. Discontinuance after order for new trial.—After a new trial has been ordered by the general term on payment of costs, plaintiff will not be allowed to discontinue while the amount of the costs are in dispute and unpaid (North v. Sargeant, 14 Abb. 224). i. Installment of bond.-Discontinuance on bond payable by installments when only part due (The People v. N. Y. Superior Court, 19 Wend. 104). As to ordering a discontinuance or stay to prevent injustice (see Jones v. Winkfield, 10 Bing. 308; 3 M. & S. 846; Ames v. Ragg, 2 Dowl. 35). a. Forgery.-Discontinuance on defense of forgery (Fowler v. Starr, 3 Denio, 165; Lowerre v. Vail, 5 Abb. 230). b. Proceedings against insurance companies.- The attorneygeneral has no power to discontinue proceedings instituted by him under Laws of 1853, ch. 466, to close the business of fire insurance companies; the power is with the State comptroller (Re Mechanics' Fire Ins. Co. 5 Abb. 444). c. Another action pending.—The fact of another action pending for the same cause in a foreign State is no reason for ordering a discontinuance of the action in this State (Republic of Mexico v. Arrangois, 1 Abb. 437; Liftchild v. Smith, 7 Rob. 306; see ante, p. 283,ƒ, 217, f. d. The pendency of an action on behalf of all the creditors is not a reason for ordering a discontinuance of an action by an individual creditor (La Chaise v. Lord, 10 How. 462). e. Discontinuance after answer of action pen ding has been set up as a defense to a subsequent action for the same cause.Where the pendency of a former action is pleaded, the plaintiff may afterwards discontinue; and such discontinuance defeats the answer (Averill v. Paterson, 10 N. Y. 500; see ante, p. 218, a, and Bedell v. Powell, 13 Barb. 183). f. Discontinuance after a defense of infancy.-In an action against several, as joint defendants, if one of them sets up the defense of infancy, the court, on motion, will give leave to discontinue as to such defendant without costs (Cuyler v. Coates, 10 How. 141; Wellington v. Classon, 18 How. 10; 9 Abb. 175); provided the plaintiff moves promptly after the auswer; if he suffers further costs to be incurred, after he has knowledge of the defense, he must pay such subsequent costs before he will be permitted to discontinue (St. John v. Hart, 16 How. 192). And where defendants were minors, and obtained merchandise on credit, and, when sued, interposed the plea of infancy, the plaintiffs were permitted to discontinue without costs (Van Buren v. Fort, 4 Wend. 209; see ante, in note to § 305). g. Discontinuance of actions by overseers.-Overseers of the poor, after the expiration of their term of office, and after others have been elected to their places, cannot discontinue an action previously commenced in their names as overseers (Wright v. Smith, 13 Barb. 414). h. Discontinuance in actions to recover possession of personal property.-See ante, p. 306, c. ¿. Discontinuance as to one defendant at the trial.-Where, on the trial, the plaintiff asks for leave to discontinue as to a defendant who has answered separately, he may be permitted to do so, but it should be on the condition of paying the costs of such defendant (Marks v. Bard, 1 Abb. 63). See ante, in note to § 305. j. Discontinuance after supplemental complaint.—Where a plaintiff, in a supplemental complaint, claims the same relief as that claimed in the original complaint, if he discontinues, it must be on payment of costs in both actions (Fisher v. Hall, 9 How. 259). k. Discontinuance without notice to attorney.-Where after a a defendant has appeared by attorney, and after issue the plaintiff obtains a consent from the defendant in person for a discontinuance, and fails to notify the attorney, or to enter an order for a discontinuance, a judgment by default dismissing the complaint with costs, taken by such attorney, will not be set aside except on payment of costs (Pilger v. Gore, 12 Abb. 244; 21 How. 155). 7. Discontinuance of appeal.—An appellant cannot dismiss his appeal by serving a notice of discontinuance; he must enter an order to discontinue and pay the costs (Burnett v. Harkness, 4 How. 158; and see Gale v. Wells, 7 How. 191; Porter v. Jones, id. 192; Warren v. Eddy, 13 Abb. 28; 32 Barb. 664). m. Election to discontinue.-An order at special term provided that the plaintiff might discontinue, and in case he elected to do so within twenty days, and served notice of his election on the defendants, the defendants were required to stipulate to answer in a new action. The plaintiff, instead of serving notice of his election to discontinue, appealed to the general term, where, more than twenty days after the order at special term, the order was affirmed,―beld, (1) that plaintiff was not required, in order to discontinue the action, to enter an order for that purpose, but service of a notice of his elec tion to discontinue would have effected a discontinuance; and (2) that it was too late, notwithstanding the appeal, to serve such notice after the twenty days limited by the order had expired (Ferry v. Bank of Cent’l N. York, 9 Abb. 100). a. Setting aside discontinuance.-The court, after a lapse of eigh teeen years, refused to set aside a discontinuance entered by consent (State of Indiana v. Woram, 15 Abb. 264). A discontinuance entered on the consent of the clerk of the attorney set aside (Irvine v. Spring, 7 Rob. 293; 35 How. 479). TITLE XI. Of Appeals in Civil Actions. CHAPTER I. APPEALS IN GENERAL. II. APPEALS TO THE COURT OF APPEALS. III. APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT. CHAPTER I. Appeals in General. SECTION 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 325. Who may appeal. 326. Parties, how designated on appeal. 327. Appeal, how made. 328. Clerk to transmit papers to appellate court. 329. Intermediate orders affecting the judgment may be reviewed on the appeal from the judgment. 330. Judgment on appeal. 331. Time for appealing. 332. The like. § 323. Appeals substituted for writs of error. Writs of error in civil actions, as they have heretofore existed, are abolished; and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title. a. Writ of error, when proper.-A judgment upon an award must be reviewed by writ of error (Isaacs v. The Beth Hamed rash Society, 19 N. Y. 584), and so must a determination of the supreme court in prohibition (Beeker v. The People, 18 N. Y. 487); or mandamus prior to 8 April, 1859; (id.; The People v. Church, 20 N. Y. 529; and see Laws 1859, ch. 174, and note to § 333, post); and as to writ of error in criminal cases under act of 1852, see People v. Barry, 10 Abb. 225); Summary proceedings to dispossess tenants (Freeman v. Odgen, 40 N. Y. 105). b. Pauper appeal.-A party cannot appeal in forma pauperis (Ostrander v. Harper, 14 How. 16; and see 3 Paige, 273; and in note to § 471, post). c. Appeal by the people may be without any undertaking or security whatever, and such appeal shall operate as a stay of proceedings on the judgment appealed from (Laws 1858, ch. 37, § 2). d. Appeals by the people, State officers, &c., may be without security, and such appeal shall operate as a stay of proceedings on the judgment or order appealed from (Laws 1861, ch. 288). e. Appeals by municipal corporations shall be valid to stay proceedings without security or undertaking being given, unless the court shall otherwise direct; and in such case an undertaking executed in their official capacity, by either the mayor, comptroller, or counsel to the corporation, in the name and on behalf of said corporation, shall be valid for the purpose of such appeal (Laws 1859, ch. 262, § 1; and see in note to § 354, post). ƒ. Waiver of right to appeal.-The right to appeal is waived by acceptance of any benefit, under the judgment or order, as costs (Lewis v. Irving Ins. Co. 14 Abb. 140, n; see Noble v. Prescott, 4 E. D. Smith, 139; Radway v. Graham, 4 Abb. 468; Kelley v. Bloom, 17 Abb. 229; Lupton v. Jewett, 19 Abb. 220; 1 Rob. 639); but a plaintiff does not waive his right to appeal from a judgment by accepting the amount thereof (Bennett v. Van Sickel, 18 N. Y. 481; Benkard v. Babcock, 27 How. 391; 17 Abb. 421; 2 Rob. 175; see, however, Kelly v. Bloom, 17 Abb. 229; Brown v. Richardson, 7 Rob. 57). The prosecution to judgment and execution, of a limit bond, and collecting a portion of the judgment, does not prevent an appeal from the judgment rendered against the sheriff for the escape from the limits for which such bond was given (Lawrence v. Campbell, 32 N. Y. 455). The payment of a judgment, not being a compromise, does not prevent the party paying from appealing (Wells v. Danforth, 1 Code Rep. N. S. 415; and see in note to § 368, post). g. The court of appeals has the power to enforce a mutual stipulation, made between the parties in the court below, by which they agreed that the decision in such case in the court below should be final, and that no appeal should be taken. The duty of hearing appeals involves the jurisdiction, to determine whether a particular case is properly before the court on appeal, and to dismiss it if brought in violation of the agreement of the parties (Townsend v. The Masterson Stone Dressing Co. 15 N. Y. 587). h. Relief on motion, instead of appeal.-Where facts have arisen, since a judgment was entered of such a nature that it is clear the judgment ought not to be executed, relief against the judgment may be given upon a motion to vacate same, provided the facts are undisputed (Wetmore v. Law, 34 Barb. 515; and see The People v. The Mayor, 11 Abb. 66; ante, p. 274, a). An error that the judgment was entered for more than the verdict and interest and costs, should be corrected by motion in the court below, before an appeal to the court of appeals; it cannot be corrected after the decision of the case in the court of appeals (Griswold v. Haven, 26 How. 170; 16 Abb. 413). Thus where after judgment for plaintiff, defendant obtained an order for a new trial, which order was reversed in the court of |