Margaret F. Hayes, Appellant, and William B. Hayes, Plaintiff, v. 255-79th Realty Corporation, Respondent

Margaret F. Hayes, Appellant, and William B. Hayes, Plaintiff, v. 255-79th Realty Corporation, Respondent. [MAJORITY] The decision of this court handed down on June 27, 1939 [ante, p. 991], is hereby amended to read as follows: Action for damages for personal injuries in connection with the claimed breaking of a porcelain portion of a shower bath handle. Judgment modified by striking out the provision that the appellant’s complaint be dismissed on the merits and inserting in place thereof a provision that the action is discontinued, with costs to the defendant up to and including the trial, and, as thus modified, the judgment is unanimously affirmed, with costs to the appellant. The record clearly establishes that the plaintiff made a timely motion to discontinue the action before she had “ rested ” and before the issues of fact had been submitted to the trier of the fact. The general rule applied, therefore, that the plaintiff was entitled to a discontinuance upon appropriate terms since the situation did not come within any exception to the general rule as a consequence of the defendant being entitled to affirmative relief because of a counterclaim or the like. (Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226, 230; Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563.) Appeal from order dated May 3, 1938, dismissed. Present — Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ.