Opinion
June 23, 1953.
Present — Dore, J.P., Cohn, Callahan, Breitel and Bergan, JJ.;
Order affirmed, with $20 costs and disbursements to the respondents. (See Katz v. Austin, 271 App. Div. 217.)
We dissent and vote to modify by allowing plaintiffs to discontinue on payment of full bill of costs. There is no counterclaim interposed here and plaintiffs may discontinue at any time as matter of law upon imposition of appropriate terms. There was no power in the court to require that plaintiffs discontinue upon condition that they would not bring another action for the same cause. ( Schintzuis v. Lackawanna Steel Co., 224 N.Y. 226; Hayes v. 255-79th Realty Corp., 257 App. Div. 104 8.) If the discontinuance was sought for the purpose of enabling the plaintiffs to demand a jury trial some provision could have been made in the order to present such a result. [See post, p. 685.]