
    Iselin v. Smith et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 14, 1891.)
    Practice in Civil Cases—Dismissal—Counter-Claim.
    In an action to restrain defendants from interfering with a fence inclosing an alleged private road, which defendants tore down, they set up in their answer a right to use such road, and also asked an injunction to restrain plaintiff from building up the fence. Held, that the answer set up an equitable counter-claim, entitling defendants to affirmative relief, and plaintiff should not be granted leave to discontinue without consent of defendants, unless he stipulate not to close the road against defendants.
    Appeal from special term, Westchester county.
    Action by Adrian Iselin against Sarah Smith and others to restrain defendants from interfering with a fence. Defendants appeal from an order granting leave to plaintiff to discontinue the action.
    Reversed.
    Argued before Barnard, P. J., and Pratt, J.
    
      Cornelius E. Nene, for appellants. Martin J. Keogh, for respondent.
   Barnard, P. J.

The plaintiff fenced in what he asserts to be his 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 their 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 counter-claim 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.  