Majority
Headnote
Appeal from Special Term, Kings County. Action by James J. Casey against Frank S. Gannon and another. From judgments denying plaintiff’s motion to discontinue the cause, to retax costs and to modify the judgment, to open plaintiff’s default, and for a commission, he appeals. Order denying motion to discontinue reversed and motion granted, order denying motion to retax costs and modify judgment reversed, order denying motion to open default reversed, and order denying motion for a commission affirmed. John S. Wise, Jr., for appellant. Frank S. Gannon, Jr., of New York City, for respondent executors. W. Benton Crisp, of New York City, for respondents Wagener and Cotter. Parker K. Deane, of New York City, for respondents Ganes and others.The court was justified in refusing to issue a commission to take the testimony of Hughes and to delay the trial therefor, or by reason of the sickness of Downing, and even in refusing to open the default if the denial of the motion to discontinue on payment of costs was warranted. But the motion to discontinue should have been granted, as the plaintiff by the pleadings aloné moved affirmatively under the statute to test the validity of the will. The principal defendants even denied that the necessary persons had been brought in as parties. The order denying the motion to discontinue should be reversed, with $10 costs and disbursements against the respondents, and the motion to discontinue upon payment of taxable costs to each group of respondents granted. The order denying the motion to retax the costs and to modify the judgment is reversed, without costs. The order denying the- motion to open the default should be reversed, with $10 costs and disbursements against all respondents, and the motion granted. The order denying the motion for a commission is affirmed, with $10 costs and disbursements to each group of respondents.