Caruthers v. Bankers Trust Co. 215 A.D. 694

Order granting defendant’s motion for judgment, pursuant to Civil Practice Rules 106 and 107, and dismissing complaint, and judgment entered thereon reversed on' the law, with costs to the appellant to abide the event, and defendant’s motion for judgment denied, without costs. We are of opinion that the order of discontinuance was conditional and not absolute. The conditions of the order were accepted by the defendant by not moving to modify the order and by not appealing therefrom, and by accepting the costs, as imposed by the discontinuance. Without the granting of leave .to begin another action, it may be said that plaintiff would not have acquiesced in the order and would have permitted a dismissal of her action. A dismissal of the complaint, under section 23 of the Civil Practice Act, would have enabled her to sue again within the time therein provided. Rich, Young and Kapper, JJ., concur; Kelly, P. J., and Manning, J., dissent.