
    Headley-Reed Company, Inc., Respondent-Appellant, v. Bolling Company, Inc., Appellant-Respondent.
   Order, entered on June 28, 1963, granting defendant’s motion to the extent of staying the action commenced on June 3, 1963, unanimously modified on the law, on the facts and in the exercise of discretion, so as to deny the stay, and as so modified, the order is affirmed, with $20 costs and disbursements to plaintiff-respondent-appellant. This action was commenced to recover for commissions claimed to be due to the plaintiff. It was settled by stipulation. Thereafter, and on June 3, a second action was commenced by the plaintiff, claiming that moneys had become due to him subsequent to the settlement of the first action. It is the defendant’s position that all claims by the plaintiff against the defendant were settled by the stipulation and that there is no basis, in the light of that stipulation, for the second action. In consequence, the defendant moved in this action for a stay of the second action, and further, for a direction that the plaintiff execute an unconditional stipulation discontinuing the second action. Special Term granted the stay but denied the requested direction. We conclude that the application for a stay should also have been denied. The better way to test the position of the defendant that all claims between it and the plaintiff had been settled by the stipulation entered into in this action, would be by asserting that position as a defense in the action sought to be stayed. Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.  