
    Arthur M. Tiber, Respondent, v. Cecil B. Tiber, Appellant.
   Order granting the motion to discontinue and to dismiss defendant’s counterclaim unanimously reversed and the motion denied, with $20 costs and disbursements to the appellant. On the prior appeal (282 App. Div. 473), there was necessarily involved an affirmance of so much of the order of' Special Term as denied plaintiff’s then motion to discontinue the present action. Consequenily the issue on this motion has been previously determined and the present order is contradictory of the prior decision. In the opinion on the prior appeal it was expressly recognized that the action survived for purposes of section 1170 o£ the Civil Practice Act. All that was precluded was the conversion of this action, begun in 1933, into one that would litigate issues not comprised within the original pleadings and which depended upon facts that had existed for a long time. It was never intended to reduce whatever protection the defendant already had or to cut down any rights she may have obtained as a result of the settlement agreement that was made while this action was pending unless, of course, changed circumstances should merit such cutting down. The foregoing was evident from the specific reservation for the entry of final judgment, if that should be advisable, and the omission to authorize discontinuance, although application had been made therefor in the motion which resulted in the earlier appeal. Present — Dore, J. P., Cohn, Callahan, Breitel and Botein, JJ. [Bee post, p. 861.]  