Opinion
January 8, 1941.
Present — Crosby, P.J., Taylor, Dowling, Harris and McCurn, JJ.
Order reversed on the law and facts as a matter of discretion, without costs of this appeal to either party, and motion denied, without costs. Memorandum: Although the order from which appeal is taken does not state that the original action was dismissed without prejudice to pursue the second action, an examination of the record of the trial of the first action as furnished by the respondent herein, shows that dismissal was without prejudice to the bringing of a second action. (Civ. Prac. Act, § 482.) This second action now brought both in theory and relief sought differs from the original action. ( Wilner v. Independent Order Ahawas Israel, 122 App. Div. 615.) Proper exercise of discretion leads us to reverse the order from which appeal is taken and to deny the motion made below for a stay pending the payment of the costs of the first action. ( Skeels v. Bodine, 68 App. Div. 217; Wiedhopf v. Wolf, 229 id. 152; Watkins v. Pacific Finance Corporation, 259 id. 685.) All concur. (The order enjoins plaintiff and his attorney from proceeding further in the action to cancel a deed until the payment of costs taxed in a previous action brought for the same relief and in which plaintiff submitted to a voluntary nonsuit.)