The process was void, and must be set aside with costs. The notice of motion signed D. B. attorney for defendant, was a sufficient notice of retainer. (3 Caines, 133.) After the appearance of the defendant, the rule for discontinuance, without the payment of the defendant’s costs, was a nullity. (10 Johns. R. 367.) The motion is granted on the defendant’s stipulating not to bring an action of false imprisonment.