Opinion
January 29, 1968
Order of the Supreme Court, Westchester County, dated July 18, 1967, which directed that the action is discontinued with prejudice, and judgment of said court made thereon on July 27, 1967, modified, on the law and the facts and in the exercise of discretion, by striking therefrom the words "with prejudice" and substituting therefor the words "without prejudice". As so modified, order and judgment affirmed, with one bill of $10 costs and disbursements to appellant. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings made as indicated herein. Appeal from order of said court dated September 12, 1967, which denied plaintiff's motion to resettle said order dated July 18, 1967 and to vacate the judgment, dismissed as academic, without costs. Service of the summons herein was contested and a traverse hearing was ordered. Upon the hearing plaintiff's counsel attempted to stipulate that the service of the summons be vacated without prejudice. Defendant's counsel asked that the stipulation be amended to be with prejudice. Counsel for plaintiff did not reply and the court stated that the stipulation was consented to and that the court agreed, provided it was made with prejudice. An order was accordingly made and judgment was entered dismissing the complaint with prejudice. Acquiescense of plaintiff in the abandonment of his cause of action can only be based upon his attorney's silence after consenting to the vacatur of the service of the summons. In our opinion this is too tenuous a ground upon which to base such a drastic result (cf. Bissell v. Village of Williamsville, 141 Misc. 758, 759). Christ, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.