
    Margaret F. Hayes, Appellant, and William B. Hayes, Plaintiff, v. 255-79th Realty Corporation, Respondent.
   Action for damages for personal injuries in connection with the claimed breaking of a porcelain portion of a shower bath handle. Judgment modified by striking out the provision that the appellant’s complaint be dismissed on the merits and inserting in place thereof a provision that the action is discontinued, with costs, and, as thus modified, the judgment is unanimously affirmed, with costs to the appellant. The record clearly establishes that the plaintiff made a timely motion to discontinue the action before she had “ rested ” and before the issues of fact had been submitted to the trier of the fact. The general rule applied, therefore, that the plaintiff was entitled to a discontinuance upon appropriate terms since the situation did not come within any exception to the general rule as a consequence of the defendant being entitled to affirmative relief because of a counterclaim or the like. (Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226, 230; Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563.) Appeal from order dated May 3,1938, dismissed. Present —■ Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ. [See post, p. 1048.]  