Andrew W. Kaulbach, Respondent, v. Frederick S. Magnus, Appellant, Impleaded with Cyrus R. Lerch and Others

Andrew W. Kaulbach, Respondent, v. Frederick S. Magnus, Appellant, Impleaded with Cyrus R. Lerch and Others. Discontinuance on the payment of costs—it is not properly ordered on the hearing of issues raised by a demurrer. A person, against whom no personal claim is made, but who has been made a, party defendant in an action, upon the ground that he is interested therein by reason of his partnership with another defendant, and who has intei'posed a demurrer to the complaint served upon him, and noticed the issue raised • thereby for trial, is entitled to have such issue duly disposed of, and the court is not justified in entering an order requiring him to 'withdraw the demurrer upon the payment by the plaintiff to him or to his attorney of ten dollars costs.. In such a case, if the plaintiff desires a discontinuance of the action, he may apply to the court for a proper order of. discontinuance, upon the payment of the costs. Appeal by the defendant, Frederick S. Magnus, from an order of the Supreme Court, made at the New York Special Term and. entered in the office of the clerk of the county of New York bn the 5th day of April, 1899, requiring the said defendant to withdraw a demurrer interposed by him to the plaintiff’s complaint, upon condition that the plaintiff pay to him or to his attorney ten dollars-costs, and at the same time serve a consent to discontinue the action as against him. Henry Brill, for the appellant. H. Melville Walker, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action was brought to recover damages against the defendants Lerch and Sondheim. The appellant was made a party defendant, the complaint alleging that he had some intérest in the action by reason of his partnership with the defendant Sondheim, and for this reason was made a defendant, but no personal claim - was-made against him. The defendant Magnus appeared in the action, and demanded that a copy of the complaint be served upon him. Upon such complaint being served, he interposed a demurrer thereto- and duly noticed the issue raised by such demurrer for -trial, cross-notice of trial being served by the, plaintiff. Upon the argument-of this demurrer the order appealed from was made. No affidavit appears to have been submitted to the court, but from the record it appears that the order was granted upon the argument of the demurrer and upon the statements made in open court that the plaintiff had not intended to serve the complaint upon the defendant Magnus. The order entered on this application appears to be unauthorized. The complaint having been served upon the attorney for the defendant Magnus, he had the right to answer or demur, as he was not required to allow a judgment, which would be binding upon him, to be entered by default, and after demurring he was entitled to have the issue of law'raised by the demurrer duly disposed of. The plaintiff at any time had a right to discontinue the action against the appellant upon the payment of the costs accrued up to the time of such discontinuance ; but the court was not justified in entering an order requiring the defendant to withdraw a demurrer to the complaint. If the plaintiff desired to discontinue the action as against Magnus, he could apply to the court for a proper order of discontinuance upon the payment of costs. The order appealed from is, therefore, reversed, with ten dollars costs and disbursements. Van'Brtjnt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements.