Order affirmed, without costs, with leave to renew, on the ground that such order was granted in the exercise of sound discretion because at the time the motion was made and decided there was pending and under consideration a motion by defendant Town of Pitts-ford for summary judgment. All concur, except Cunningham, J., not voting. (The order denies motion of plaintiff for an order discontinuing the action to restrain the construction of a highway without prejudice.) Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.