Majority
p. 879VICTOR SEAMAN, Resp’t, v. TIMOTHY O’LEARY, Impleaded, etc., Appl’t.
Headnote
Discontinuance.Appeal from an order granting leave to discontinue an action, etc.
Wilson Brown, Jr., for resp’t; Joseph E. Slier, for appl’t.
This is an appeal by defendant from an order granting plaintiff’s motion for leave to discontinue this action as against appellant without costs, and canceling the lis pendens filed by defendant O’Leary.
The action was one in equity, and it was clearly discretionary in the special term to permit a discontinuance without costs.
The answer of the defendant did not constitute a counterclaim, and the plaintiff intermediate the commencement of the action and making his motion, had obtained all that he could obtain by a trial and judgment in his favor; it was, therefore, eminently proper that the suit should be discontinued.
It is evident the suit was meritorious, and while the court below might well
p. 880
have imposed mild terms as a condition of discontinuance, the fact that it did not do so does not constitute such error as to call for a reversal of the order. Order affirmed, without costs.
Baenabd, P. J., concurs; Dykman, J., not sitting.