
    Rason Asphalt, Inc., Respondent, v. Town of Oyster Bay, Appellant. (Action No. 1.) Rason Asphalt, Inc., Respondent, v. Town of Oyster Bay, Appellant. (Action No. 2.)
   After service of the answer in Action No. 1, a summons and complaint, based on the same cause of action, were served in Action No. 2. A motion to dismiss the second complaint on the ground that there was another action pending between the same parties for the same cause was denied, and a cross motion for leave to discontinue the first action was granted, conditioned on the payment of costs. The appeal is from the order entered thereon. Order, affirmed, with $10 costs and disbursements. The causes of action alleged in the two complaints are substantially the same, the complaint in Action No. 2 merely adding allegations to show compliance with the requirements of section 65 of the Town Law. Costs in Action No. 1 have been paid or tendered. Under these circumstances, granting leave to proceed on the second complaint can in no way be said to prejudice or harass appellant. The Special Term properly exercised its discretion in disposing of the motions as it did.. Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ., concur.  