Messing v. Pins

Defendants’ application, pursuant to sections 245 and 245-a of the Civil Practice Act, was made in April, 1961. However, plaintiffs’ action had theretofore been settled — when the case appeared on the Trial Calendar in October, 1960 — by a stipulation requiring defendants to pay $54,300 in installments. In fact, defendants had already paid on the settlement two installments which became due in October and December, 1960, respectively. Although — in view of the terms of the stipulation of settlement — the action technically may have been still pending (see Thompson Med. Co. v. Benjamin Pharmaceuticals, 4 A D 2d 504; Karpinski v. Karpinski, 130 N. Y. S. 2d 364), and, therefore, power resided in the court to pass on the application to serve the supplemental pleading, it was an improvi*645dent exercise of discretion, under the circumstances of this ease, to have granted the motion. Concur — Botein, P. J., Breitel, Tálente, Eager and Steuer, JJ.