The order appealed, from should he modified by permitting the plaintiff to discontinue on payment to the defendant of the costs and disbursements of the former appeal herein (104 App. Div. 251), the disbursements in the action, and ten dollars costs and disbursements of this appeal. As so modified the order should be affirmed. Present&emdash;O’Brien, P. J., Patterson, Ingraham, Laughlin and Clarke, J. Order modified as directed in opinion, and as modified affirmed. Settle order on notice.