10 How., 428; 1 Abb., 223; Meyers vs. Trimble, 3 E. D. Smith, 607; 1 Abb., 399; affirming same case, 1 Abb., 220; 3 E. D. Smith, 608; Quintard vs. Secor, 3 E. D. Smith, 614; 1 Abb., 393. See also Dusenberry vs. Woodward, 1 Abb., 443, as to cases where the defendant stands in a fiduciary capacity.

In both Meyers vs. Trimble, and Quintard vs. Secor, however, it is admitted that the remedy by process of contempt must be cautiously administered, and that inability on the part of the defendant to pay, might be admissible as a sufficient excuse for his contumacy on such process.

In Merritt vs. Thompson, the amount had been actually deposited by the defendant, so that immediate question did not arise. The Superior Court are more lenient in their views on the subject, and hold that, unless it is clear that the defendant holds the money in a fiduciary capacity at the time of the order, so as to be then arrestable in respect of its non-payment, an order for satisfaction should not be granted, but the defendant should be left to his ordinary remedies. See Dusenberry vs. Woodward, 1 Abb., 443, supra. The same principle is maintained in the Supreme Court, in Lane vs. Losee, 11 How., 360; 2 Abb., 129. See, likewise, Russel vs. Meacham, 16 How., 193; Duncan vs. Ainslie, 26 Barb., 199.

This line of decisions were all previous to the amendment of 1857. That amendment removes the difficulty, as it is now competent for the court to order the enforcement, as on a judgment, of a sum admitted to be due in respect of a mere naked indebtedness; and, as on a provisional remedy, when the defendant stands in a fiduciary capacity, or process against his person might be otherwise obtainable. See Guict vs. Murphy, 18 How., 411; Russell vs. Meacham, 16 How., 193; Duncan vs. Ainslie, 26 Barb., 199.

The admission must, however, be total, to warrant an order of this nature. Thus, where the defendants admitted a sum to be in their hands, offering to pay it into court, but ignored the plaintiff's title, an order was refused. Bender vs. Sherwood, 15 How., 258. See also Slawson vs. Conkey, 10 How., 57, as to an admission of liability on contract, but a denial of it as a liability in tort, according to the form of the complaint.

On a subsequent occasion, however, an order was made in the same action, for payment of the same amount, a more extended view being taken of the operation of the section. Slawson vs. Conkey, 1 Abb., 228.

It was also held, in the same case, 10 How., 57, that, where the admission, such as it is, extends, not to part only, but to the whole of the plaintiff's claim, the case does not come under the section, but the plaintiff's application should be for judgment on the pleadings.

Where, too, the amount of the plaintiff's claim is unliquidated, no order will be made. Coursen vs. Hamlin, 2 Duer, 513. See also Dolan vs. Petty, 4 Sandf., 673.

It seems to be settled that such an order may be made, as to an admitted portion of a single demand, leaving the controversy to proceed as to the contested balance. See Guict vs. Murphy, 18 How., 411; Duncan vs. Ainslie, 26 Barb., 199. See also Merritt vs. Thompson; Myers vs. Trimble; and Quintard vs. Secor; Slanson vs. Conkey, 1 Abb., 228; Baker vs. Nussbaum, 1 Hilt., 549. In Russell vs. Meacham, 16 How., 193, the court doubted whether it was proper to grant this relief, where it had the effect of splitting up a single cause of action. It was, however, allowed in that case, the admission extending to the whole of a separate count of the complaint. The doubt seems, however, to be overruled, by the general effect of the decisions above referred to. In Baker vs. Nussbaum, 1 Hilt., 549, it was held, that rule 57 (35), granting twenty days for the payment of costs, or performance of conditions imposed by an order, has no application to a motion of this description.

See Fosdick vs. Groff, 22 How., 158, as to the power of granting relief of this nature, under the usual general demand, in connection with a motion for judgment, on the ground of defects in the answer.

§ 183. Amendment of Complaint.

It will be necessary for the plaintiff to consider, at this juncture, whether, on the defence, as disclosed by the pleading of the defendant, it may not be necessary for him to amend his complaint, either to obviate any objection taken by demurrer, or to meet any fresh aspect of the case, suggested by statements contained in the defendant's answer.

The pleadings should be carefully considered with this view, and considered in due time, as the Code allows him only the usual twenty days for that purpose, and, if he omit to do so within that time, he loses his power to amend as of course. He will, on the contrary, be driven to a special application, which, though entertainable at any time, may, or may not, be granted, in the discretion of the court. If he require more time, he should be careful to obtain in due season, either a consent or an order for extension, in the usual manner. The subject of amendment has been already fully treated in book VI., chapter III., devoted to its consideration.

If he decide that the complaint requires no amendment, the next point to be considered is, whether the answer may, or may not, require a reply, or be open to a demurrer; to which subjects the next chapter of this work is devoted.

184. Discontinuance.

Before proceeding, however, to those considerations, it may be expedient to take a glance at this proceeding, as one admissible, it is true, at any stage, but more eminently appropriate, for obvious reasons, to this period of the action, in case, on a careful examination of the pleadings, the plaintiff is satisfied that the defence set up must prevail, or is otherwise convinced of the inexpediency of further prosecution of the action, either in a general point of view, or with reference to the peculiar form in which it has been brought.

No particular form is requisite for the notice of discontinuance, but it should of course be in writing, be duly and properly served, and be accompanied with a tender of the full amount of costs and disbursements then actually due, as above referred to. It is usual, and will be always advisable, to obtain at the same time a consent from the adverse party to dismiss the complaint without costs, and to obtain and enter the usual order thereon, in order that the records of the court may be duly discharged of the suit, and that no question may arise thereafter on the subject. If a consent be refused, the order should be applied for, on proof of the service of the notice of discontinuance, and payment or tender of the costs. In such case, it should be on the usual notice to the adverse party.

In the first district of the Supreme Court, an order for discontinuance by consent, may be entered by the clerk, without the judge's signature, under the special order of the 29th of September, 1859, before cited in book IV., section 72. In the other districts and tribunals, the judge's signature is necessary.

The order should be obtained and entered in all cases, except where the plaintiff may be disposed to place full reliance in the good faith of the defendant. And, even in this case, it would be better never to omit it. The mere service of a notice, is of itself insufficient to work an actual discontinuance, and the old practice of always entering an order is still virtually in force. Schenck vs. Fancher, 14 How., 95; Averill vs. Patterson, 6 Seld., 500; 10 How., 85; Bedell vs. Powell, 13 Barb., 183; 3 C. R., 61; Swart vs. Borst, 17 How., 69 (71). So, likewise, as to a consent obtained from the defendant in person, but never acted upon, either by notice to the attorney, or entry of an order. Pilger vs. Gou, 21 How., 155; 13 Abb., 244.

But where the order itself provided that the plaintiff might discontinue, by service of a notice within a given time, it was decided that such service would have been sufficient, without the entry of a second order. It was held, however, that the right was gone, by omis

sion to serve within the prescribed period, and that an appeal from the order had no operation as an extension. Ferry vs. Bank of Central New York, 9 Abb., 100.

In cases where a defence put in, operates by way of surprise upon the plaintiff, he may be allowed to discontinue without costs, as against a defendant setting up that defence, on a special application.

Thus, this relief has been granted, on the defence of infancy being interposed by one of several co-defendants. Cuyler vs. Coats, 10 How.. 141; Wellington vs. Classon, 18 How., 10; 9 Abb., 175; Butler vs. Morris, 1 Bosw., 329. See likewise St. John vs. Hart, 16 How., 192. So likewise, as to the defence of privilege from suit. Taaks vs. Schmidt, 19 How., 413.

So likewise, where the suit was to sustain the plaintiff's right under an appeal, taken conformably to existing practice, but subsequently adjudged by the Court of Appeals to be void. Sunney vs. Roach, 4 Abb., 16.

So likewise, in a case of misnomer of a defendant, not actually served, but who volunteered an appearance. Waterbury Leather Manufactur ing Company vs. Krause, 1 Hilt., 560; 9 Abb., 175, note.

It has been held that the plaintiff may also discontinue without costs, as against a defendant who has not actually appeared, though he may have retained an attorney. Schenck vs. Fancher, 14 How., 95; Averill vs. Patterson, 6 Seld., 500; 10 How., 85. See, however, a contrary view taken on this point, in Foster vs. Bowen, 1 C. R. (N. S.), 236, and Weigan vs. Held, 3 Abb., 462.

A plaintiff in foreclosure may, on receiving his debt and costs, discontinue without costs, as against the mortgagor, or junior encumbrancers. Gallagher vs. Egan, 2 Sandf., 742. See also, as to discontinuance of proceedings against a manufacturing corporation, on payment of the plaintiff's claim, where no other creditors had as yet intervened and acquired rights under the proceedings. Angell vs. Sillsbury, 19 How., 48.

A motion of the above nature must be made at once, on the ground of the discontinuance becoming known. If the plaintiff omits to do so, he will not be relieved from any subsequent costs, but must pay them. St. John vs. Hart, 16 How., 192; Lowerre vs. Vail, 5 Abb., 229. See also Butler vs. Morris, 1 Bosw., 329 (330). In that case a discontinuance of this description was allowed at the actual trial, the objection then first becoming apparent.

Of a similar nature will be the plea of an insolvent's or bankrupt's discharge, or any other similar line of defence, unknown to the plaintiff when the action was commenced. Under circumstances of this description, a discontinuance without costs may probably be granted.

On the death of a sole defendant, the plaintiff is entitled, as of right,

to discontinue, and the representatives cannot compel him to proceed with the action. Keene vs. La Farge, 1 Bos., 671; 16 How., 377.

Where a defendant had answered jointly with others, and his co-defendants had made an offer of judgment, it was held that the plaintiff, on accepting and entering up judgment on that offer against the one defendant, might discontinue without costs as to the other. Stafford vs. Onderdonk, 8 Barb., 99; 2 C. R., 115.

But, if the plaintiff voluntarily dismisses the case at the trial, as against some of the defendants jointly answering, proceeding against the others, payment of the costs of the former may be imposed. Marks vs. Bard, 1 Abb., 63.

A discontinuance or dismissal of the above nature, entitles the plaintiff to bring a second action, against the defendants so dismissed (Earl vs. Campbell, 14 How., 330); and, where he cannot serve co-defendants in tort, he may discontinue as to them, at any time before the trial. McKenzie vs. Hackstaff, 1 E. D. Smith, 75.

But, as a general rule, and unless special circumstances intervene, a plaintiff, on discontinuing after appearance of the defendant, must pay all the latter's costs up to that time. Averill vs. Patterson, 6 Seld., 500; 10 How., 85; Bedell vs. Powell, 13 Barb., 183; 3 C. R., 61; Morrison vs. Ide, 4 How., 304; 3 C. R., 27; Pignolet vs. Daveau, 2 Hilt., 584; North vs. Sargeant, 14 Abb., 223.

See, as to the disposition to be made, with reference to the costs of a motion, pending at the time of discontinuance, Crockett vs. Smith, 14 Abb., 62. And, in the same case, a discontinuance was held to have the effect of a judgment.

When an equity suit has been continued by bill of revivor and supplement, the plaintiff cannot subsequently discontinue, without pay ment of the costs of both suits from the beginning. Fisher vs. Hall, 9 How., 259.

The amount of costs, payable on a discontinuance, when effected, will be hereafter considered, in the chapter devoted to that subject.

A completed discontinuance terminates the action for all purposes; nor can any motion be subsequently made in it. Hope vs. Acker, 7 Abb., 308.

If incomplete, the proper course of the defendant is to move for a rule of discontinuance at once, or for a dismissal of the complaint, should the cause be reached, in the same term at which the notice was served. He will not be permitted to keep the cause still on the calendar, for the purpose of multiplying costs. Jennings vs. Fay, 1 C. R. (N. S.), 231. He cannot enter up judgment for costs, on the mere notice, but must proceed in regular order. Hicks vs. Brennan, 10 Abb., 304. See also Wil son vs. Wheeler, 6 How., 49; 1 C. R. (N. S.), 402.