Guglielmoni v. Diamond

Motion referred to the court that rendered the decision. Present — • Lazansky, P. J., Carswell, Johnston, Adel and Taylor, JJ. Motion for reargument granted and upon reargument the decision of this court handed down March 23, 1942 [263 App. Div. 1012], is amended to read as follows: Order granting plaintiff’s motion to discontinue the action reversed on the law and the facts and the motion denied, with ten dollars costs and disbursements to abide the event. The ease comes within the exceptions to the general rule that a plaintiff is entitled to discontinue an action upon appropriate terms, as a consequence of the appellant being entitled to affirmative relief because of the counterclaim. (Hayes v. 255-79th Realty Corp., 257 App. Div. 1048.) The trial will proceed before Hon. Selah B. Strong, official referee, on ten days’ notice. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.. concur.