William Moore, Respondent, v. Maria Moore, Appellant

William Moore, Respondent, v. Maria Moore, Appellant. (Argued June 20, 1893; decided June 30, 1893.) An order of General Term affirming an order of Special Term granting the application of the plaintiff in an action hy the husband for divorce on the ground of adultery., for a discontinuance of the action upon payment of costs, is not, in the absence of any proof of abuse of discretion, reviewable here. Appeal from order of the General Term of the Supreme Court in the third judicial department, made May 25, 1893, which affirmed an order of Special Term granting a motion by plaintiff to discontinue the action. The following is the mem. of opinion : “ The order of the General Term, which affirmed an order of the Special Term granting the plaintiff’s application to discontinue this action upon payment by him of the costs, is not reviewable in this court. The action was for a divorce upon the ground of adultery, and was on the Circuit calendar when the order of discontinuance was made. The court had before it the moving affidavits and the opposing affidavits made by the defendant and her attorney, and it was upon their consideration, as well as of the pleadings, that the order was granted. Under the circumstances developed, it was within the discretion of the court to grant or to refuse the plaintiff’s application. It does not appear that there was any violation of any right or interests of the defendant. In fact, the granting of the order of discontinuance might be regarded at a concession on the part of the plaintiff that he was unable to prove his case. There was no abuse of the discretion which rested in the court, with respect to the application, and it was for it to pronounce upon the terms to be imposed upon the plaintiff as a condition of the discontinuance. “ The appeal should be dismissed, with costs.” R. A. Parmenter for appellant. Arthur L. Andrews for respondent. [MAJORITY] Per Curiam mem. for dismissal off appeal. All concur. Appeal dismissed.