Lawler v. Sheffield Construction Co. , 187 A.D. 939 ( 1919 )

Order of the County Court of Kings county modified by providing, as a condition for such discontinuance, that the moving party, the Sound Holding Company, pay to the appellant the sum of $367.80, the expenses of the reference, being $75 for referee’s fees, $42.80 for those of the stenographer, and $250 for appellant’s expenses for counsel; and that if such payment be not made within ten days the motion to discontinue be denied, with ten dollars costs; and as so modified order affirmed, with costs, on the ground that respondent should not have been permitted to have the action discontinued, without paying the appellant for the expenses of the reference to which appellant had been subjected as a necessary incident of affording the respondent the relief granted to it by this court on the former appeal. (184 App. Div. 912.) Mills, Rich and Kelly, JJ., concurred; Jenks, P. J., and Jaycox, J., dissented. Order to be settled on notice before Mr. Justice Mills.