Joseph H. Messing Et Al. v. Ann Pins Et Al‪.‬

Order entered on April 25, 1961, granting defendants leave to serve a supplemental answer containing counterclaims, unanimously reversed on the facts and in the exercise of discretion, with $20 costs and disbursements to appellants and the motion denied. Defendants' application, pursuant to sections 245 and 245-a of the Civil Practice Act, was made in April, 1961. However, plaintiffs' action had therefore 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