The opinion
Capozzoli, J.
(dissenting). I dissent. As stated at Special Term, there is no showing that the interests of these plaintiffs are identical with the interests of the plaintiffs in the Federal actions. In addition, the plaintiffs are within their rights in protesting that their action will be unnecessarily delayed if they are forced to apply for leave to intervene in the Federal actions. Furthermore, subdivision (a) of section 22 of the Securities Act of 1933 (U. S. Code, tit. 15, § 77v, subd. [a]) gives plaintiffs the right to sue in either the Federal or State courts and specifically provides: “ No case arising under this subchapter and brought in any State court of competent jurisdiction shall be removed to any court of the United States.”
I see no exception provided for in this last-quoted subsection which would justify the conclusion reached by the majority and I would affirm.
Markewich, J. P., Kupferman, Lane and Steuer, JJ., concur in Per Curiam opinion; Capozzoli, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on May 12, 1972, modified, on the facts and as a matter of discretion, to stay the prosecution of this action until the disposition of the consolidated class actions now pending in the United States courts, without prejudice to plaintiffs’ applying for leave to intervene in such actions and with leave to move to vacate the stay upon a showing that plaintiffs have been unduly prejudiced by any subsequent developments in the said actions; and otherwise affirmed, without costs and without disbursements.