
    Frank Cammarata et al., Doing Business as Pilgrim Real Estate, Appellants, v. Bertha Conley et al., Respondents.
    Supreme Court, Appellate Term, Second Department,
    June 17, 1958.
    
      John Guastella and Edward Marks for appellants.
    
      Emerson A. Swartz for respondents.
   Per Curiam.

The action against the defendant Swartz, as stakeholder, was properly joined with the action against defendant Conley (Civ. Prae. Act, § 258) and he was properly before the court as a conditionally necessary party (Civ. Prae. Act, § 193). This defendant, if so advised, may apply for appropriate relief under the provisions of section 285 of the Civil Practice Act.

The judgment should he unanimously reversed on the law and facts, and order dated December 30, 1957 modified to the extent of denying defendant Swartz’ motion for summary judgment, and as so modified affirmed, without costs on this appeal to either party. Appeal from order of February 26, 1958 denying plaintiff’s motion to vacate the judgment dismissed as academic. Order dated February 26,1958 granting leave to defendant Conley to file jury demand nunc pro tunc affirmed, without costs.

Concur — Pette, Hart and Brown, JJ.

Judgment reversed, etc.  