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Granoff v. Henry Products Company

Appellate Division of the Supreme Court of New York, Second Department
Dec 3, 1951
279 App. Div. 747 (N.Y. App. Div. 1951)

Opinion

December 3, 1951.


Plaintiff, a resident of Kings County with an office in New York County, commenced this action in New York County to recover for services rendered to defendants, a copartnership, residents of Queens County. Together with the service of defendants' answer, which is a general denial, defendants demanded that the action be transferred to Queens County, and plaintiff consented. After plaintiff filed a note of issue, defendants demanded a trial by jury. Plaintiff then moved to discontinue the action, without prejudice, on payment of taxable costs. The motion was denied. A motion for reargument was granted but, on reargument, the motion for leave to discontinue was again denied. Plaintiff appeals from both orders. Order on reargument reversed on the law and the facts, with $10 costs and disbursements, and plaintiff's motion to discontinue on payment of taxable costs to date granted, without costs. Appeal from original order dismissed, without costs. The fact that plaintiff intends to institute another action in Kings County where he would be entitled to a preference under rule 7 of the Kings County Supreme Court Trial Term Rules is not a sufficient reason for denying the motion. Defendants do not seek affirmative relief, and the rights of third parties are not involved. Under these circumstances, plaintiff has a right to discontinue the action at any time upon payment of costs. ( Matter of Butler, 101 N.Y. 307; Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562.) Nolan, P.J., Carswell, Johnston, Sneed and Wenzel, JJ., concur. [See post, p. 799.]


Summaries of

Granoff v. Henry Products Company

Appellate Division of the Supreme Court of New York, Second Department
Dec 3, 1951
279 App. Div. 747 (N.Y. App. Div. 1951)
Case details for

Granoff v. Henry Products Company

Case Details

Full title:HERBERT GRANOFF, Appellant, v. HENRY PRODUCTS COMPANY, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 3, 1951

Citations

279 App. Div. 747 (N.Y. App. Div. 1951)