Opinion
October 23, 1956
Order allowing plaintiffs to discontinue action, unanimously reversed, with $20 costs and disbursements to the appellant, and the motion denied. The action is grounded on purported interference with plaintiff's business, conversion, and other tort theories; and the discontinuance was granted without prejudice. Appellant argues that the discontinuance was designed to nullify the effect of an order of preclusion by providing the opportunity to commence a new action for the same relief. Respondents contend that the nature of the action and the course of proceedings followed by former counsel are such that it would be inappropriate to apply in full rigor the rule stated in Katz v. Austin ( 271 App. Div. 217, 218) where a discontinuance was granted in a personal injury action, but the condition imposed that "no further action be instituted by these plaintiffs against these defendants for the same relief". We leave to the Special Term in the county in which venue may ultimately be laid, upon a proper showing, not present in this record, the question of policy as to what, if any, amendment in pleading may be allowed or what modification of the scope of preclusion may be justified. Defendant's motion for change of venue, which was not decided on the merits at Special Term because the discontinuance had been allowed, is remitted to Special Term for decision. Settle order on notice.
Concur — Breitel, J.P., Botein, Rabin, Valente and Bergan, JJ.