*988Staley, Jr., Cooke, Sweeney and Simons, JJ., concur; Herlihy, P. J., dissents and votes to vacate the stay in the following memorandum: Special Term properly exercised its discretion in granting a stay on December 18, 1970 pending “final determination of the issues in the action pending in the United States District Court”. The issue before this court is whether, as of May 1, 1971, to continue the stay which was granted prior to the defendant having interposed any pleading in response to the complaint. I would vacate the stay and require the defendant in the State action to answer or otherwise plead. The issues sought to be resolved in the Federal action are determinable in the State action and the plaintiff is entitled to an early resolution of the pending issue.
