93 N.Y.S. 355 | N.Y. App. Div. | 1905
The defendant sought by motion to compel a discontinuance of the action by reason of a certain agreement between the parties and the execution of certain papers looking to that result. A reference was ordered, under section 1015 of the Code of Civil Procedure, to report upon the questions of fact arising upon this motion. The referee reported adversely to. the defendant, holding substantially that the conditions for the final effectiveness of the agreement had not so matured as to justify requiring the delivery of the papers which would be' operative finally to dispose of the action, or at least so as to warrant the granting of such relief upon a motion. The learned judge at Special Term adopted the conclusions of the referee and denied the motion to compel a discontinuance. To that extent J think the first order appealed from was right. The order should be modified, however, by striking out those provisions in the last paragraph which direct the return of the papers therein mentioned. The parties ought to be left in the same position they occupied before the motion was made, so that their
As to the second order which is presented for review,, it is not appealable so far as it denies the motion for a reargument. The defendant’s motion, however, included an application for leave to ' serve a supplemental answer setting up “ the exchange of the consents to discontinue this action and the exchange and1 delivery of the general releases by the plaintiff herein to the defendant,” etc. This part of the motion was also, denied. I think it should have been granted as presenting the most' cohvenient way in ’which the defendant, can obtain a formal adjudication upon a defense-which he claims' to' constitute a bar to the further prosecution of this action.
The first order should be modified as indicated,; and that portion of the second order which denies leave to servé a supplemental answer should be reversed and the motion for such leave granted.
Hirsohberg, P. J., Jeniis and Hooker, JJ., concurred.
Order entered on the 10th day of June, 1904, modified by striking out those provisions in ,the last; paragraph which' direct the return of the papers therein mentioned, and as modified affirmed, without costs. Order entered on the 14th day, of June, 1904, reversed ■ and motion for leave to serve a supplemental answer-granted, with costs. _