In an action to recover on negotiable instruments and for legal fees incurred in the collection thereof, defendant appeals from an order of the Supreme Court, Queens County, dated October 6, 1966, which granted plaintiff's motion to discontinue the action without prejudice and permitted defendant to tax its cost and disbursements. Order modified, on the law and the facts, by inserting a new decretal paragraph therein providing that, in addition to the costs and disbursements to be taxed by defendant, plaintiff shall pay defendant $250 as a counsel fee. As so modified, order affirmed, with costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Plaintiff commenced this action on or about March 17, 1964. The complaint contained four causes of action. Defendant interposed an answer containing denials and two separate defenses of accord and satisfaction. Pursuant to plaintiff's demand, defendant served a bill of particulars. Thereafter, plaintiff moved for summary judgment and dismissal of the defenses, which required defendant's opposition. The motion was denied in toto. Subsequent to the commencement of this action plaintiff located assets of defendant in California and commenced an identical action against defendant there, by way of an attachment. Faced with the dismissal of the California action because of the pendency of this New York action, plaintiff made the motion to discontinue the New York action; and defendant was also required to oppose that motion. In our opinion, under the circumstances, since plaintiff put defendant to the hardship of defending the same action in two forums, the award of costs and disbursements alone was insufficient and should have included a compensatory counsel fee as a condition to the granting of the plaintiff's motion (CPLR 3217; Lundin v. Mittelman, 281 App. Div. 894). Beldock, P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.