Opinion
March 16, 1953.
In an action to recover on promissory notes, an order was made on September 18, 1952, at Special Term, granting plaintiff's motion to discontinue the action. The motion was granted on condition that plaintiff pay to defendants the taxable costs and disbursements of the action and on the further condition that plaintiff permanently refrain from instituting any action or proceeding against defendants upon the same or similar cause of action. By notice of appeal dated October 9, 1952, plaintiff appealed from so much of said order as restrained him from instituting other action. By order dated October 29, 1952, the order of September 18, 1952, was resettled so as to delete therefrom a recital that it was granted on motion of defendants' attorney. Resettled order modified by striking from the first ordering paragraph the subparagraph designated (2), and by substituting in place thereof a paragraph providing that in addition to the payments described in subparagraph (1) plaintiff pay to defendants $250 at the same times stated in said subparagraph (1). As thus modified the order, insofar as appeal is taken, is affirmed, without costs. Appeal from order of September 18, 1952, dismissed, without costs. Under all the facts and circumstances, the imposing of the condition, that no new action be brought, was inappropriate, and respondents should have been awarded their legal expenses incurred in the action in addition to costs and disbursements as a condition to judicial approval of discontinuance of the action. Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ., concur.