Order granting plaintiff's motion to discontinue the action reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, without costs. The case comes within the exceptions to the general rule that a plaintiff is entitled to discontinue an action upon appropriate terms, as a consequence of the appellant's being entitled to affirmative relief because of the counterclaim. ( Hayes v. 255-79th Realty Corp., 257 App. Div. 1048.) The trial will proceed before Hon. Selah B. Strong, official referee, on ten days' notice. Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ., concur.