
    Second Department,
    December, 1914.
    James J. Casey, Appellant, v. Frank S. Gannon and John Henry Wagener, as Executors and Trustees, etc., and Others, Respondents.
    (Appeals Nos. 1, 2, 3, 4.)
    
      Practice — right to discontinue action.
    
    Appeals by the plaintiff from four orders of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the Í7th day of June and the 1st, 14th and 30th days of July, 1914, respectively.
   Per Curiam:

The court was justified in refusing to issue a commission to take the testimony of Hughes and to delay the trial therefor, or by reason of the sickness of Downing, and even in refusing to open the default if the denial of the motion to discontinue on payment of costs was warranted. But the motion to discontinue should have been granted, as the plaintiff by the pleadings alone moved affirmatively under the statute to test the validity of the will. The principal defendants even denied that the necessary persons had been brought in as parties. The order denying the motion to discontinue should be reversed, with ten dollars costs and disbursements against the respondents, and the motion to discontinue upon payment of taxable costs to each group of respondents granted. The order denying the motion to retax the costs and to modify the judgment is reversed, without costs. The order denying the motion to open the default should be reversed, with ten dollars costs and disbursements against all respondents, and the motion granted. The order denying the motion for a commission is affirmed, with ten dollars costs and disbursements to each group of respondents. Jenks, P. J., Burr, Thomas, Rich and Putnam, JJ., concurred. Order denying motion for a commission affirmed, with ten dollars costs and disbursements to each group of respondents. Order denying motion to open default reversed, with ten dollars costs and disbursements against all respondents, and motion granted. Order denying motion to discontinue reversed, with ten dollars costs and disbursements against the respondents, and motion to discontinue upon payment of taxable costs to each group of respondents granted. Order denying motion to retax the costs and to modify the judgment reversed, without costs. 
      
      See Code Civ. Proc. § 2653a.—[Rep.
     