Henry Holub, Respondent, Appellant, v. Anna Svoboda, Appellant, Respondent, Impleaded with Joseph Svoboda and Anna Nikl, Defendants

Henry Holub, Respondent, Appellant, v. Anna Svoboda, Appellant, Respondent, Impleaded with Joseph Svoboda and Anna Nikl, Defendants. [MAJORITY] Order modified by striking out the provision imposing terms as a condition for the granting of the motion of defendant Anna Svoboda to set aside all proceedings subsequent to the joinder of issue, and as so modified affirmed, without costs. The order was properly made, but the circumstances were such that no terms should have been imposed, as the plaintiff proceeded at his peril when he disregarded the answer interposed by defendant Anna Svoboda, which presented a triable issue and which might either defeat the partition action in its entirety or result in a, greater dower admeasurement. Lazansky, P. J., Young, Carswell, Seudder and Tompkins, JJ., concur.