Opinion
May, 1930.
Order as resettled, dismissing complaint, reversed upon the law and the facts, with ten dollars costs and disbursements, and motion denied, without costs. The court is of opinion that plaintiff should be given an opportunity to try its case. The reversal is upon condition that plaintiff stipulate within ten days that the dismissal of the counterclaim be vacated and that the counterclaim be tried with the complaint. Should the plaintiff fail so to stipulate the order is affirmed, with ten dollars costs and disbursements. Young, Kapper, Carswell and Scudder, JJ., concur; Lazansky, P.J., dissents and votes to affirm, being of opinion that the discretion of the Special Term was fairly exercised and should not, therefore, be disturbed.