Joseph H. Messing et al., Appellants, v. Ann Pins et al., Respondents

(January 23,1962) Joseph H. Messing et al., Appellants, v. Ann Pins et al., Respondents. [MAJORITY] 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 improvident exercise of discretion, under the circumstances of this ease, to have granted the motion. Concur — Botein, P. J., Breitel, Tálente, Eager and Steuer, JJ.