Majority
p. 792Henry Williams, Respondent, v. Harry C. McIntyre, Appellant.
On the facts disclosed by the record, appellant was entitled to a dismissal of respondent’s complaint without conditions, and it was an improvident exercise of discretion to deny appellant such relief. (Cf. Maraynes v. Orseck Boys, Inc., 274 App. Div. 1070 ; Ferber v. Newgold, 133 App. Div. 739 ; Tuttle v. Dubuque Fire & Marine Ins. Co., 155 App. Div. 802 .) Nolan, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.