
    Leonard Malin, Respondent, v. Howard Pulver et al., Appellants.
   Appeal from order, Supreme Court, New York County, entered December 12, 1972, unanimously dismissed, as academic, without costs and without disbursements. Order, Supreme Court, New York County, entered on March 2, 1973, denying a motion for rehearing (made as “reargument ”), unanimously modified, on the law and the facts and in the exercise of discretion, to grant defendants-appellants’ motion for rehearing to the extent of permitting amendment of the answer by adding an affirmative defense and counterclaim in the form attached to the motion papers, and staying execution of the judgment entered January 30, 1973 pending adjudication of the issues raised in the pleadings as amended, and otherwise affirmed, without costs and without disbursements. This is an action to recover on a series of nonnegotiable promissory notes representing payment to be made under an agreement, as amended, between the parties, whereby the plaintiff sold his insurance brokerage business to the defendant. The amount still due for the notes and as alleged in the complaint, pleaded in the first cause of action is $10,650. The second and third causes of action on which summary judgment was granted at Special Term, are for defaulted notes totaling $1,755. After their default and suit therefor, the defendants alleged substantial loss in the amount of $11,398 due to cancellation of insurance policies, allegedly through the fault of the plaintiff, as a consequence of which the defendants lost income which would have been used to pay the notes as they became due. While all of the issues should be determined at a trial, and the Trial Judge should have discretion to vacate the judgment (partial summary) should the defendants’ position be sustained, the plaintiff is entitled, in the event he is ultimately successful, to the protection of the prior judgment on the defaulted notes. Concur — Markewich, J. P., Nunez, Kupferman, Lane and Tilzer, JJ.  