Charles F. Lawler, Plaintiff, v. The Sheffield Construction Company, Respondent, and Others, Defendants. William J. Dilthey, Appellant; Sound Holding Company, Purchaser, Respondent

Charles F. Lawler, Plaintiff, v. The Sheffield Construction Company, Respondent, and Others, Defendants. William J. Dilthey, Appellant; Sound Holding Company, Purchaser, Respondent. [MAJORITY] Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, to be paid by the Sheffield Construction Company and the Sound Holding Company to the appellant, and motion to vacate the order of discontinuance, entered March 31, 1920, granted, with ten dollars costs against the same parties, and the notice of pendency of action restored, unless the respondents pay to the appellant the said costs of the appeal and motion, and the sum of $183.80 (the expenses of the reference), and a counsel fee of $350. If such payment be made within ten days, the order is affirmed, without costs. When the case was last before this court we held that the appellant could maintain the appeal and that the case should not be discontinued •without compensating him for the expenses of the reference and a counsel fee of $250. [See 187 App. Div. 939.] The respondents did not accept the conditions of discontinuance, and the reference continued. The referee’s report, confirmed by the court, upheld the appellant’s contention regarding the two mortgages inserted to Ms injury in the terms of sale, and provided for a payment to him, out of the avails of the sale, of $183.80, the expenses of the reference. Notwithstanding the decision, the respondents have again obtained an order of discontinuance without notice to appellant, upon condition that the expenses of the reference, not including counsel fee, be paid to appellant, and the order appealed from domes appellant’s motion to vacate. Our prior decision was that the case should not be discontinued without paying to appellant a counsel fee as well as the expenses of the reference, and the reasons wMch prompted the decision are not impaired by the fact that the appellant has carried the reference to a successful conclusion. Jenks, P. J., Mills, Blackmar and Kelly, JJ., concur; Jaycox, J., not voting.