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Krakower v. Tauber

85 N.Y.S. 339 Court N.Y. App. Term Decision date 1903-12-17 English

Delivered by BISCHOFF, J.

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p. 339
KRAKOWER v. TAUBER.
(Supreme Court, Appellate Term.
December 17, 1903.)

Headnote

1. Appeal—Order Entered by Consent.
An order granting a motion for a discontinuance of an action without • the imposition of terms, but with the consent of defendant, is not reviewable on appeal.
Appeal from City Court of New York, Special Term.
Action by Tobias Kralcower against Abraham Tauber From an order granting a motion for discontinuance, defendant appeals.
Ap- . peal dismissed.
Argued before FREEDMAN, P. J., and BISCHOFF and. BLANCHARD, JJ.
Samuel L. Frankenstein, for appellant.
Charles C. Peters, for respondent.

The order appealed from granted a discontinuance of the action, without costs, “after hearing the attorneys for the plaintiff in support of said motion, and the attorneys for the defendant appearing, but not opposing.” For the purposes of an appeal,, the order itself shows the appellant’s consent to the actual direction made, and if in fact counsel had not consented to the omission to impose terms for the discontinuance he should have brought that fact to the attention of the court below, and have procured a resettlement.

Upon the record before us there is nothing which calls for the . exercise of the functions of an appellate court (Dawson v. Parsons, 74 Hun, 221 , 26 N. Y. Supp. 327 ), and the appeal is therefore dismissed, with $10 costs and disbursements. All concur.