McGrath v. Near , 4 A.D.2d 816 ( 1957 )

This is an appeal from a judgment of the Supreme Court which purported to dismiss the plaintiff’s complaint on the merits, and from an order on which such judgment was entered. During the course of a voir dire examination of jurors counsel for the plaintiff became enbroiled in a controversy with the Trial Justice as to how far the examination might proceed. After some argument counsel for the plaintiff asked leave to discontinue the action upon the payment of costs. The Trial Justice granted the motion on the merits to which counsel for the plaintiff objected, contending that the discontinuance should be without prejudice. There is no question that the Trial Justice was empowered to condition the discontinuance on the merits (Rules Civ. Prac., rule 301), and we think that counsel for the plaintiff should have heeded the Trial Justice’s admonition relating to the examination. However, we are loath to affirm an order of judgment, under the circumstances, which has the effect of completely depriving the plaintiff of her day in court. We think that in the interest of justice the judgment should be reversed and the order modified by permitting discontinuance without prejudice upon payment of costs. Judgment reversed on the law and facts and in the exercise of discretion and order modified, without costs on appeal as indicated in the foregoing. Foster, P. J., Bergan, Halpern and Gibson, JJ., concur.