Page:Federal Reporter, 1st Series, Volume 9.djvu/365

 850 FEDSBAIi BEFOBTEB. �contract. The several contracta have no relation to each other. They are of kindred nature, but they are none the less distinct, and none the less represent distinct and separate transactions between the parties. �It isj however, further urged that as each of the plaintiffs' de- mands, when taken separately, does not involve an amount sufificient to enable the defendant, if ultimately defeated, to take an appeal, and as the amount of all the demands when united is sufficient to give a right of appeal, the court cannot permit a discontinuance as to two of the causes of action without jeopardizing a substantial right, namely, a right of ultimate appeal. It cannot be claimed that there is any vested right of appeal at this stage of the controversy, nor that such right would accrue until verdict and judgment should pass. The most that can be said is that there is a possible future right of that character. It is not a right in esse. Possibly it is not even a right in futuro, because the defendant may have verdict and judgment in its favor. Everything in that respect now rests in con- tingency, and although it may be that if all the causes of action now in suit were to be prosecuted together, and if the defendant were to be defeated, there would then accrue a right of appeal, I do not think that at the present stage the defendant is possessed of such a right in that regard as can be held to f orbid the exercise by the plain- tiff of his right, which is more in the nature of an absolute, present right to discontinue as to some of his causes of action. �Upon this point, Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pr. (N. S.) 37, was cited, in which case it was at least inferentially held that, where a defendant has acquired a right in reference to the sub- ject-matter of the action, a discontinuance in disregard of that right would not be permitted. But the right there spoken of is some right acquired by order or decree of the court already made, and in the face of which a discontinuance is asked. Of course, it is not difficult to understand that litigation between the parties to a controversy may proceed to such an estent, even before the final judgment or decree, that substantial and valuable rights may accrue or become estab- lished, and in that event a discontinuance or dismissal, which should take away or affect such rights, would not be permitted. But that is not this case. �The plaintiff will be granted leave to discontinue, without prejudice, his suit as to the two causes of action contained in the complaints, marked Nos. 2 and 3, on payment of the taxable costs in those two «ases. ��� �