Francis P. Martin, Respondent, v. Ambrose A. Gavigan Company et al., Appellants

Francis P. Martin, Respondent, v. Ambrose A. Gavigan Company et al., Appellants. Reported below, 107 App. Div. 279. (Argued October 19, 1906; decided October 26, 1896.) Motion upon argument for leave to withdraw appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 2, 1905, reversing a judgment in favor of defendants entered upon the report of.a referee, and granting a new trial in an action for the foreclosure of a mechanic’s lien. The motion was made upon the ground that it did not appear from the order of the Appellate Division that the reversal was upon questions of law only. Augustin Ledwith and William J. Swalm for appellants. Hector M. TIitchings for respondent. [MAJORITY] The interests of justice require the granting of this motion, but upon conditions that will not cast the burden thereof entirely upon the respondent. The motion is granted upon the conditions that within twenty days from the date of the entry and service of this order, the appellants pay to the respondent’s attorney all the costs of this appeal in this court, including fee for argument, and a counsel fee of fifty dollars. If such payment be not made within the time specified, then the motion is denied and the order is affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts. Concur: Cullen, Ch. J., Haight, Vann, Werner, Willard Bartlett and Hiscook, JJ. Absent: Gray, J.