Without considering the merits of the application, the order must he reversed for the reason that at the time of making the motion a ••similar application was pending undetermined in the same court. In opposition to the motion defendant’s counsel presented an affidavit showing that issue had been joined and the cause had been noticed for trial for the May Term, 1903; that a motion was made by the plaintiff, returnable in Part 2 of the Trial Term, presided -over by Mr. Justice Leventkitt, June 26,1903, to advance the trial •of this cause upon the same grounds upon which this motion was made; that the papers for and in opposition to the motion were -duly submitted to the court, and that no decision has been rendered thereon. These facts are not controverted. The plaintiff attempted to withdraw the former motion by a notice to that effect in the notice of motion which résulted in the order now under review. This notice, however, was ineffectual for that purpose* The motion •could not be withdrawn without the order of the court or the con-sent of the defendant after the defendant had been put to the trouble and expense of opposing it. N or could a new motion be made on the same facts without leave of the court. If this practice "were to be sanctioned, then motion after motion could be made *536without limit, and one party might put his adversary to untold needless trouble and expense and burden the courts with the re-examination of papers and the determination of questions that had been examined and determined over and over again by the same court presided over by the same or another justice.
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denie'd, with ten dollars costs.
Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred..
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.