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. Consequently the issue on this motion has been previously determined and the present order is contradictory...
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