267 A.D. 775 | N.Y. App. Div. | 1943
Order denying appellants’ motion to vacate an ex parte order granting leave to commence and maintain an action at law nunc pro tune, which order was granted under the provisions of section 1078 of the Civil Practice Act, reversed on the law, without costs, and the motion granted, without costs. Under section 1078 of the Civil Practice Act permission to institute an action is discretionary. The general rule is against granting such permission unless special circumstances are shown which justify a separate proceeding at law. (Carmody, New York Pleading and Practice, Vol. 2, § 578.) The respondent alleges that permission to sue in the action brought or contemplated was not necessary but was sought only as a precautionary measure. That may not be said to be such special circumstance as justified the making of the order. Close, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.