
    Adrian Iselin, Resp’t, v. Sarah Smith et al., Appl’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    Discontinuance—Counterclaim:.
    This action was brought to restrain defendants from interfering with a fence plaintiff had erected across what he claimed to be his private road. The answer alleged that the road was a public highway and asked an injunction to restrain plaintiff from building a fence at that place. Held, that this constituted a counterclaim which defendants should not be deprived of proving and that a discontinuance of the action should not be allowed except upon stipulation not to deprive defendants of access to the road.
    Appeal from order granting leave to discontinue.
    
      Cornelius K. Kene, for appl’ts; Martin J. Keogh, for resp’t.
   Barnard, P. J.

The plaintiff fenced in what he asserts to be Bis private road. This road runs along in front of defendants’ premises. The fence cut them off from the road and they tore it down. The plaintiff commenced an action to restrain the defendants from interfering with this fence. The defendants answer that they have a right to use the road by them deed and because the road was a public highway.

The defendants ask by the answer an injunction to restrain plaintiff from building up the fence. The plaintiff asked leave to discontinue on payment of costs and disbursements. Leave was granted and the defendants appeal. By the answer a counterclaim is set up and if proven will entitle the defendants to the affirmative relief of an injunction based upon a right to use the road shut up. The defendant should not be deprived of her right to prove her title to the road. As the case now stands, the inference is very strong against the plaintiff. He has shut up an open road, claiming it to be his private property. The defendants assert a right and the plaintiff commences an action for an injunction against them. The defendants admit the destruction of the fence by them and a determination to again destroy it if constructed. The plaintiff ought not to be permitted to discontinue his action unless upon stipulation to never again close the defendants from access to the road. If he is not willing to do this, let the defendants have an opportunity under'the answer to prove their defense and get an affirmative judgment.

Order reversed, with costs and disbursements, and motion denied, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  