
    Transfilm Incorporated, Appellant, v. Young America Films, Inc., Respondent.
   Per Curiam.

In this action plaintiff, a producer of films, sued defendant, a distributor, to compel defendant to account for the proceeds from sales of films produced by plaintiff and delivered to defendant. Defendant sought to stay the action before trial but by order entered August 4, 1947, the motion for a stay was denied on the basis of the written stipulation between the parties dated December 18, 1946, which the Special Term held was separate from the contract providing for arbitration. That stipulation inter alia provided that plaintiff, the producer, agreed to make delivery of films there in question in reliance on the solemn promise of Young America [defendant] that whatever claims Young America may have against Transfilm [plaintiff] will not be asserted in any manner against these films and slidefilms and that they will be paid for and accounted for promptly anyway.”

From the order of August 4, 1947, defendant did not appeal but interposed an answer admitting liability and raising only the question as to plaintiff’s production costs and the amount due. An official referee reported that the sum of $24,327.25 was owing from defendant to plaintiff for the period in issue and on that report the judgment in question was entered in plaintiff’s favor against defendant for the sum of $24,880.10.

Nevertheless, thereafter defendant on December 1, 1948, moved to stay execution of the judgment thus obtained until certain arbitration proceedings pending between the same parties were concluded and judgment entered upon the award to be made therein and reasonable opportunity afforded “ to offset the two judgments ” on condition that defendant post a surety company bond. The basis of the stay was substantially the same as that urged in the previous motion, viz., the defendant’s contention that in the arbitration proceedings still pending in which no award has as yet been made to either side, defendant would obtain a judgment against plaintiff which it could set off against the judgment herein in plaintiff’s favor. Special Term in the order appealed from granted the stay providing defendant posted a $30,000 surety bond. The bond was posted and plaintiff appeals.

On all the facts and circumstances disclosed in this record, including the .stipulation of December 18, 1946, the order, so far as appealed from, by plaintiff granting defendant’s motion to stay execution of the judgment should be reversed, with $20 costs and disbursements to appellant, and the motion for a stay denied.

Dore, J. P., Cohn, Callahan, Yan Yoorhis and Shientag, JJ., concur.

Order, so far as appealed from, unanimously reversed, with $20 costs and disbursements to the appellant, and the motion for a stay denied.  