Rendo v. Stillano , 3 N.J. Misc. 2 ( 1924 )

Buchanan, V. C.

On the day set for final hearing, but prior to the commencement thereof, complainant moved to dismiss his hill on paianent of costs, which motion was resisted by defendant. I am unable to see that the cause comes in anywise within the class of exceptions to' the general rule. See In re Welsh, 98 N. J. Eq. 808 (at p. 306); McCarren v. Coogan, 50 N. J. Eq. 268. Defendant argues that complainant, bv 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’ enured 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 $350 will be allowed" to- defendant, to he taxed in the costs.