Latzke v. Williams — 252 A.D. 288

Majority

p. 288

Pauline Latzke and Others, Appellants, v. Oliver Williams and Others, Respondents.

First Department,

October 29, 1937.

p. 289

Jacob J. Podell of counsel [Abraham Porter with him on the brief; Hays, Podell & Shulman, attorneys], for the appellants.

Joseph Henry Cohen and Leo B. Mittleman of counsel [Joseph Henry Cohen, attorney for Oliver Williams, Thomas H. Williams and Washington Green, Inc.; Burnstine, Geist & Netter, attorneys for August F. Hoenack], for the respondents.

Although the court had power to impose reasonable terms as a condition of allowing a discontinuance of the action by the plaintiffs, it had no power summarily to direct a discontinuance on account of the failure of the plaintiffs to comply with the terms imposed.

The order dated April 5, 1937, so far as appealed from, should be reversed, with twenty dollars costs and disbursements to the appellants, and the defendants’ motion denied as to items a, b and c in the notice of appeal.

The order dated March 2, 1937, should be modified by providing in subdivision (3) thereof that the plaintiffs shall stipulate not to assert their claims except by defense or counterclaim and by providing in subdivision (4) thereof for only two bills of costs. As so modified said order is affirmed, without costs.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order entered on or about March 2, 1937, unanimously modified by providing in subdivision (3) thereof that the plaintiffs shall stipulate not to assert their claims except by defense or counterclaim and by providing in subdivision (4) thereof for only two bills of costs, and as so modified affirmed, without costs; order entered on or about April 5, 1937, in so far as appealed from, unanimously reversed, with twenty dollars costs and disbursements to the appellants, and defendants’ motion denied as to items a, b and c of the notice of appeal. Settle orders on notice.