International Madison Bank & Trust Co. v. Jonas Construction Co.

255 A.D. 1005, 8 N.Y.S.2d 390, 1938 N.Y. App. Div. LEXIS 6241

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1938
• Status: Published

Opinion

— Action to foreclose a mortgage on real property. Defendant Tillie H. Liebmann appeals from an order granting plaintiff’s motion for the discontinuance of the action and the cancellation of notice of pendency thereof, upon payment of her taxable costs and disbursements. Order modified by inserting “ and $250 in addition thereto ” after the words “ her taxable costs and disbursements ” in each of the decretal paragraphs of the order; and as so modified affirmed, with ten dollars costs and disbursements to appellant. The discretion vested in the Special Term was properly exercised except as to the terms imposed. Appellant failed to show merits of her alleged counterclaim, which, if she so elects, she may make the subject of a new action. Appellant is entitled, however, to the increased indemnity provided by the modification. Lazansky, P. J., Taylor and Close, JJ., concur; Davis and Adel, JJ., concur in part but dissent and vote to reverse in so far as the order discontinues the entire action in which defendant Liebmann has interposed a counterclaim. While plaintiff should have leave to discontinue its action in respect to foreclosure, defendant Liebmann should have opportunity to try the issues raised by her counterclaim, instead of being compelled to bring a new action. As the case stands, there is no reply and, therefore, the counterclaim has admitted merit.