| N.Y. App. Div. | Feb 15, 1925
The object of the present motion is apparently to enable plaintiffs to bring an action at law, after they had selected their remedy and tied up defendant’s property by lis pendens. The Special Term has found that the present action can be brought to trial in March, and that the defendant will be prejudiced by a discontinuance. The plaintiffs should not be required at the trial to elect upon which theory they intended to proceed, and under the circumstances we are of the opinion that the discretion of the Special Term was properly-exercised. The order is, therefore, affirmed, with ten dollars costs and disbursements. Kelly, P. J., Rich, Jaycox, Kelby and Young, JJ., concur.