Opinion
May 16, 1967
Motion for reargument granted and, upon such reargument, the order of this court entered on April 11, 1967 [ 27 A.D.2d 910] is vacated and plaintiff's original motion granted to the following extent: Plaintiff is directed to proceed first, in accordance with CPLR 5530 (subd. [b]) and subdivision 4 of rule XI, of the rules of this court, and to perfect its appeal for the September 1967 Term of this court, subject, however, to the following provisions: Plaintiff shall promptly ascertain from the stenographic reporter the amount of the fee required by CPLR 5525 to be deposited for a transcript of the proceedings, and serve upon defendant written demand that defendant pay to plaintiff, within seven days after the date of such service, one half of said amount. In the event that defendant shall comply with said demand, plaintiff shall, within three days after receipt of said payment, both deposit with the stenographer the full amount of his fee and notify defendant that such deposit has been made, failing which defendant's aforesaid payment shall be returned and the court will entertain a motion by defendant for an order dismissing plaintiff's appeal. In the event that defendant shall fail to comply with said written demand, the court will entertain a motion by plaintiff for an order dismissing defendant's appeal and granting leave to plaintiff to withdraw plaintiff's appeal.
Concur — Botein, P.J., Stevens, Steuer, Tilzer and McGivern, JJ.