Mully v. Drayn

Order unanimously modified on the law and facts in accordance with the memorandum and as modified affirmed, with costs to plaintiffs; Goldman, P. J. not participating. Memorandum: Special Term, in its discretion, correctly stayed all proceedings under the judgment until the determination of the appeal therefrom, and properly fixed the undertaking to be filed by plaintiffs. The procedure employed and the hearing conducted by the court, while denominated as being brought pursuant to CPLR 5519 (subd. [a], par. 6), were in full conformity with the requirements and provisions of subdivision (e) thereof. Unlike the unilateral procedure contemplated by CPLR 5519 (subd. [a], par. 6), all necessary parties were served with notice of the application, defendants were afforded a full opportunity to be heard and the matter was determined following a complete hearing on the merits. We hold, therefore, that the application was actually and properly determined pursuant to CPLR 5519 (subd. [e]). (Appeal from part of order of Ontario Special Term staying proceedings.) Present—Goldman, P. J., Del Yecchio, Witmer, Gabrielli and Cardamone, JJ.