Kerr Steamship Co. v. Indemnity Insurance Co. of North America

Order in so far as appealed from affirmed, with ten dollars costs and disbursements. The granting of the preference was discretionary. (Empire City Racing Assn. v. Nat. Fair & Exposition Assn., 167 App. Div. 126.) We are also of the opinion that in the circumstances shown by the record the refusal to grant costs on. the denial of the motion for a reargument was not an improper exercise of discretion. " The alleged equitable counterclaim, if proved, would constitute a complete defense to the action and, therefore, does not present the case of a right to a trial of that issue separately. (See Bennett v. Edison Electric Ill. Co., 164 N. Y. 131; Loewenthal v. Haines, 160 App. Div. 503; White v. Shonts, 154 id. 428.) Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ., concur.