10 Realty Inc. v. Brookmill Corp.

Appellate Division of the Supreme Court of New York

10 Realty Inc. v. Brookmill Corp.

3 A.D.2d 846, 161 N.Y.S.2d 241, 1957 N.Y. App. Div. LEXIS 5970

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 1957

StatusPublished

This text of 3 A.D.2d 846 (10 Realty Inc. v. Brookmill Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

10 Realty Inc. v. Brookmill Corp., 3 A.D.2d 846, 161 N.Y.S.2d 241, 1957 N.Y. App. Div. LEXIS 5970 (N.Y. Ct. App. 1957).

Pincite

Opinion

In an action pursuant to article 15 of the Real Property Law to determine conflicting claims with respect to a right of way for ingress and egress, the appeal is from an order granting the motion of respondent 10 Realty Inc. directing appellants to sign a proposed stipulation and to comply with the terms thereof. The proposed stipulation purports to embody an agreement entered into in open court, by which agreement the action was settled and discontinued. The order also provides that if appellants fail to comply with the order, respondent 10 Realty Inc. may, without notice, apply for a judgment which shall include the terms of the proposed stipulation. Order reversed, without costs, motion denied, the stipulation entered into in open court set aside, and action remitted for trial. The claim of respondents 10 Realty Inc. and C. I. P. Realty Co., Inc., that appellants agreed to release a certain portion of their claimed easement in return for the agreed easement rights and other consideration is not sustained by the stipulation dictated in open court, and said claim appears to be contrary to that part of the dictated stipulation which provides that the agreed easement right of way was to be “ Subject to all existing easements of record.” Appellants’ claim that they always had an easement of record and that the newly agreed easement was to be “subject” to it is inconsistent with the claim of respondent 10 Realty Inc. that appellants agreed to relinquish the easement of record for the newly agreed easement right. The stipulation dictated in open court did not clearly express the understanding of the parties, with the result that there was no meeting of the minds. Under the circumstances, the dictated stipulation is of no effect. Wenzel, Beldock, Hallinan and Kleinfeld, JJ., concur; Nolan, JP. J., concurs for the reasons stated and for the further reason that the record discloses that the stipulation was obviously regarded by the parties as incomplete.

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In an action pursuant to article 15 of the Real Property Law to determine conflicting claims with respect to a right of way for ingress and egress, the appeal is from an order granting the motion of respondent 10 Realty Inc. directing appellants to sign a proposed stipulation and to comply with the terms thereof. The proposed stipulation purports to embody an agreement entered into in open court, by which agreement the action was settled and discontinued. The order also provides that if appellants fail to comply with the order, respondent 10 Realty Inc. may, without notice, apply for a judgment which shall include the terms of the proposed stipulation. Order reversed, without costs, motion denied, the stipulation entered into in open court set aside, and action remitted for trial. The claim of respondents 10 Realty Inc. and C. I. P. Realty Co., Inc., that appellants agreed to release a certain portion of their claimed easement in return for the agreed easement rights and other consideration is not sustained by the stipulation dictated in open court, and said claim appears to be contrary to that part of the dictated stipulation which provides that the agreed easement right of way was to be “ Subject to all existing easements of record.” Appellants’ claim that they always had an easement of record and that the newly agreed easement was to be “subject” to it is inconsistent with the claim of respondent 10 Realty Inc. that appellants agreed to relinquish the easement of record for the newly agreed easement right. The stipulation dictated in open court did not clearly express the understanding of the parties, with the result that there was no meeting of the minds. Under the circumstances, the dictated stipulation is of no effect. Wenzel, Beldock, Hallinan and Kleinfeld, JJ., concur; Nolan, JP. J., concurs for the reasons stated and for the further reason that the record discloses that the stipulation was obviously regarded by the parties as incomplete.

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Bluebook (online)

3 A.D.2d 846, 161 N.Y.S.2d 241, 1957 N.Y. App. Div. LEXIS 5970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/10-realty-inc-v-brookmill-corp-nyappdiv-1957.