Opinion
April, 1933.
Present — Lazansky, P.J., Young, Hagarty, Carswell and Scudder, JJ. Settle order on two days' notice.
Respondent having consented thereto in open court, an order will be made discontinuing this appeal upon the following terms: That the facts in the complaint in the California action may be pleaded as a defense and counterclaim in the New York action to recover disability benefits, with the same force and effect as if originally pleaded, with right in respondent to plead any other defense in said action it may be advised; defendant's said counterclaim, being for equitable relief, is to be tried first; appellant to file within five days from the service of a copy of the order herein a stipulation consenting to discontinue the appeal upon the above terms. In the event that such stipulation is filed, the California action will be stayed. If appellant fail to file such stipulation, the judgment is unanimously affirmed, with costs.