Opinion
November 19, 1942.
Present — Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ.
Motion to resettle order denied, without costs. On the court's own motion, the decision of this court handed down October 28, 1942 [ ante, p. 842], is amended to read as follows: Motion by plaintiffs, pursuant to section 571 of the Civil Practice Act, to require appellant to file security on appeal to the Court of Appeals. Motion granted to the extent of requiring appellant, as a condition to the stay of execution of the judgment appealed from, within five days after the entry of the order on this motion, to file an undertaking, with corporate surety, conditioned that appellant will include in its budget for the fiscal year beginning December 1, 1942, items providing for the payment to plaintiffs of not less than twenty percent of the judgment in their favor, with four per cent interest thereon from April 30, 1941, to the date of payment, and will pay said appropriated amounts to the plaintiffs within sixty days after the adoption of said budget in the event that the Court of Appeals affirms the judgment; or in the alternative and in lieu thereof, that appellant will pay the first instalment of twenty per cent of said judgment and the accrued interest thereon within sixty days after the adoption of said budget in the event that the Court of Appeals affirms the judgment. In case appellant fails to file said undertaking as directed, the enforcement of the judgment, pending the appeal to the Court of Appeals, shall not be stayed.