Cohen v. Birchwood Park French Dry Cleaners, Inc.

Appellate Division of the Supreme Court of New York

Cohen v. Birchwood Park French Dry Cleaners, Inc.

18 A.D.2d 688, 236 N.Y.S.2d 24, 1962 N.Y. App. Div. LEXIS 6354

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

DecidedDecember 17, 1962

StatusPublished

This text of 18 A.D.2d 688 (Cohen v. Birchwood Park French Dry Cleaners, Inc.) 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

Cohen v. Birchwood Park French Dry Cleaners, Inc., 18 A.D.2d 688, 236 N.Y.S.2d 24, 1962 N.Y. App. Div. LEXIS 6354 (N.Y. Ct. App. 1962).

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Opinion

In an action to compel reinstatement of the plaintiffs as employees, officers and directors of the defendant corporation, and for other relief, the said corporation and the individual defendants appeal from an order of the Supreme Court, Nassau County, entered September 27, 1962, which denied their motion to vacate an agreement of settlement and discontinuance of the action entered into by the parties during its pendency. [689]*689Order affirmed, with $10 costs and disbursements, and without prejudice to the commencement of any new plenary action for appropriate relief, if defendants be so advised. The motion was denied at Special Term on the grounds that no fraud had been practiced by the plaintiffs; and that, in any event, the fraud, if any, was collateral to the matters which were involved in the settlement. In our opinion, since there was no judicial action upon the settlement agreement, defendants’ claim of fraud upon the court is untenable; the parties settled their differences by an agreement of their own. In any event, the action in which the present motion was made is no longer a pending action, having been discontinued. Under such circumstances, defendants’ remedy, if any, is by plenary suit, and not by a motion made in the discontinued action (see Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435). Beldock, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.

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In an action to compel reinstatement of the plaintiffs as employees, officers and directors of the defendant corporation, and for other relief, the said corporation and the individual defendants appeal from an order of the Supreme Court, Nassau County, entered September 27, 1962, which denied their motion to vacate an agreement of settlement and discontinuance of the action entered into by the parties during its pendency. [689]*689Order affirmed, with $10 costs and disbursements, and without prejudice to the commencement of any new plenary action for appropriate relief, if defendants be so advised. The motion was denied at Special Term on the grounds that no fraud had been practiced by the plaintiffs; and that, in any event, the fraud, if any, was collateral to the matters which were involved in the settlement. In our opinion, since there was no judicial action upon the settlement agreement, defendants’ claim of fraud upon the court is untenable; the parties settled their differences by an agreement of their own. In any event, the action in which the present motion was made is no longer a pending action, having been discontinued. Under such circumstances, defendants’ remedy, if any, is by plenary suit, and not by a motion made in the discontinued action (see Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435). Beldock, P. J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

18 A.D.2d 688, 236 N.Y.S.2d 24, 1962 N.Y. App. Div. LEXIS 6354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-birchwood-park-french-dry-cleaners-inc-nyappdiv-1962.

Opinion

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