Marer v. Weiner

247 A.D. 713

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1936
• Status: Published

Opinion

The action was brought to cancel two consolidated mortgages totaling $40,000 on real property, on the ground of usury. During the course of the trial, plaintiff moved to discontinue his action. The motion was granted on condition that plaintiff pay all taxable costs to date plus an additional allowance of $2,000. Plaintiff refused in open court to pay such taxable costs and additional allowance, and the court directed plaintiff to proceed with the trial of the action. Plaintiff refused in open court to so proceed, and thereupon defendant moved for a dismissal of the complaint for plaintiff’s failure to proceed. Order denying plaintiff’s motion to discontinue the action and granting defendant’s motion to dismiss the complaint with all taxable costs to date and an additional allowance of $2,000, and the judgment entered thereon, unanimously modified by eliminating the additional allowance, and as so modified affirmed, without costs. No opinion. Present — Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ.