Baumeister v. James McCreery & Co.

Order reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, without costs, upon authority of Linker v. Jamison (173 App. Div. 349, and cases therein cited). Rich, Jaycox, Manning and Young. JJ., concur; Kelly, P. J., dissents upon the ground that it is apparent that the trial of the issue as to the release will practically depend upon the' same evidence as will be required upon the trial of the main action, and under these circumstances we should not interfere with the discretion vested in the court at Special Term. (Civ. Prac. Act, § 443, subd. 3.)