
    FEINBERG v. FEINBERG.
    (Supreme Court, Appellate Division, First Department.
    November 4, 1910.)
    Dismissal and Nonsuit (§ 10)—Application for Discontinuance—Time op Application.
    After defendant had moved for an additional counsel fee in an action to annul a marriage, and the court had announced that the motion would be granted, plaintiff moved for leave to discontinue, which motion was denied, with leave to renew it after the decision on appeal from the order granting the additional counsel fee. Held, in view of the time when the motion was made, that the order denying leave to discontinue was proper.
    [Ed. Note.—For other cases, see Dismissal and Nonsuit, Dec. Dig. § 10.*]
    Appeal from Special Term, New York County.
    Action by Herman Feinberg against Fella Feinberg. From an order denying plaintiff’s motion for leave to discontinue, he appeals. Reversed, and motion granted, upon terms stated.
    See, also, 135 N. Y. Supp. 385.
    Argued before INGRAHAM, P. J., and CLARKE, SCOTT, MILLER, and DOWLING, JJ.
    Jacob Manheim, for appellant.
    James R. Ely (William M. Kilcullen, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

This is an action brought to annul a marriage. After the motion had been made for an additional counsel fee, and the court had announced that the motion would be granted, the plaintiff moved for leave to discontinue, which order was denied!, with leave, however, to the plaintiff to renew said motion after the decision on the appeal from the order granting the additional counsel fee.

We think the order appealed from was entirely proper under the circumstances) but, as we have determined the appeal from the order granting the additional counsel fee by a decision handed down herewith (125 N. Y. Supp. 385), we think this motion for leave to discontinue should be disposed of at the same time.

An order may be entered, therefore, reversing the order appealed from, and granting leave to discontinue upon payment of $350 additional counsel fee, heretofore allowed, and taxable costs and disbursements of the action, without costs to either party upon this appeal.  