
    Margaret Ferguson et al., Appellants, v. City of New York, Respondent.
   In an action to recover additional interest on a condemnation award, plaintiffs appeal from an order of the Supreme Court, Orange County, dated October 29, 1971, which granted defendant’s motion to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment. A judgment based on said order was entered in Supreme Court, Orange County, on November 9, 1971. However, no notice of appeal was ever filed from this judgment. Order modified, by (1) adding to the first ordering paragraph after the word “granted” the words “without prejudice to a renewal of this action by plaintiffs at such time as the Court of Appeals in the appeal now pending before it determines the ultimate compensation due plaintiffs for the loss of their riparian interests”; and (2) striking the words “dismissing the complaint” from the second ordering paragraph and substituting therefor the word “accordingly”. As so modified, the order is affirmed, without costs. Judgment of the Supreme Court, Orange County, entered November 9, 1971, vacated, with leave to the parties to enter an amended judgment in accordance with this order of modification. By virtue of plaintiffs’ appeal to the Court of Appeals from this court’s order of modification (Matter of Ford [Ferguson] 35 A D 2d 552) the stay provision of section 23 of the Water Supply Act [Administrative Code of City of New York, § K51-23.0] was activated. Since plaintiffs’ action may have some merit, however, they should be given an opportunity to renew their suit if they so choose at such time as the Court of Appeals in the appeal pending before it, determines the ultimate amount of compensation due to plaintiffs for the loss of their riparian interests. Hopkins, Acting P. J., Martuscello, Christ, Brennan and Benjamin, JJ., concur. [67 Misc 2d 812.]  