Opinion
12-03-1924
RENDO v. STILLANO.
John L. Heher, of Trenton, for complainant. James J. McGoogan, of Trenton, for defendant.
Bill by Sofokles Rendo against John Stillano. On complainant's motion to dismiss bill. Motion granted.
John L. Heher, of Trenton, for complainant.
James J. McGoogan, of Trenton, for defendant.
BUCHANAN, V. C. On the day set for final hearing, but prior to the commencement thereof, complainant moved to dismiss his bill on payment of costs, which motion was resisted by defendant. I am unable to see that the cause comes in any wise within the class of exception to the general rule. See In re Welsh, 93 N. J. Eq. 303, 306, 116 A. 23; McCarren v. Coogan, 50 N. J. Eq. 268, 24 A. 1033. Defendant argues that complainant, by the filing of his bill and the restraining order issued, has interfered with a sale of the subject-matter involved, and that a right of action has thereby inured to defendant against complainant, since the latter, by moving to dismiss, admits that he was not entitled to the restraint. This does not seem to me to bring the case within the principle of the exception to the general rule; and even if my opinion were otherwise, it could not avail defendant because admittedly it is not yet certain whether defendant will suffer loss or damage as the result of the restraint.
The motion will be granted; a counsel fee of $250 will be allowed to defendant, to be taxed in the costs.