Glass v. Glass

Appellate Division of the Supreme Court of New York

Glass v. Glass

29 A.D.2d 685, 287 N.Y.S.2d 149, 1968 N.Y. App. Div. LEXIS 4762

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

DecidedJanuary 29, 1968

StatusPublished

This text of 29 A.D.2d 685 (Glass v. Glass) 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

Glass v. Glass, 29 A.D.2d 685, 287 N.Y.S.2d 149, 1968 N.Y. App. Div. LEXIS 4762 (N.Y. Ct. App. 1968).

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Opinion

Order of the Supreme Court, Westchester County, dated July 18, 1967, which directed that the action is discontinued with prejudice, and judgment of said court made thereon on July 27, 1967, modified, on the law and the facts and in the exercise of discretion, by striking therefrom the words “ with prejudice ” and substituting therefor the words “without prejudice”. As so modified, order and judgment affirmed, with one bill of $10 costs and disbursements to [686]*686appellant. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings made as indicated herein. Appeal from order of said court dated September 12, 1967, which denied plaintiff’s motion to resettle said order dated July 18, 1967 and to vacate the judgment, dismissed as academic, without costs. Service of the summons herein was contested and a traverse hearing was ordered. Upon the hearing plaintiff’s counsel attempted to stipulate that the service of the summons be vacated without prejudice. Defendant’s counsel asked that the stipulation be amended to be with prejudice. Counsel for plaintiff did not reply and the court stated that the stipulation was consented to and that the court agreed, provided it was made with prejudice. An order was accordingly made and judgment was entered dismissing the complaint with prejudice. Aequieseense of plaintiff in the abandonment of his cause of action can only be based upon his attorney’s silence after consenting to the vacatur of the service of the summons. In our opinion this is too tenuous a ground upon which to base such a drastic result (cf. Bissell V. Village of Williamsville, 141 Mise. 758, 759). Christ, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

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Order of the Supreme Court, Westchester County, dated July 18, 1967, which directed that the action is discontinued with prejudice, and judgment of said court made thereon on July 27, 1967, modified, on the law and the facts and in the exercise of discretion, by striking therefrom the words “ with prejudice ” and substituting therefor the words “without prejudice”. As so modified, order and judgment affirmed, with one bill of $10 costs and disbursements to [686]*686appellant. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings made as indicated herein. Appeal from order of said court dated September 12, 1967, which denied plaintiff’s motion to resettle said order dated July 18, 1967 and to vacate the judgment, dismissed as academic, without costs. Service of the summons herein was contested and a traverse hearing was ordered. Upon the hearing plaintiff’s counsel attempted to stipulate that the service of the summons be vacated without prejudice. Defendant’s counsel asked that the stipulation be amended to be with prejudice. Counsel for plaintiff did not reply and the court stated that the stipulation was consented to and that the court agreed, provided it was made with prejudice. An order was accordingly made and judgment was entered dismissing the complaint with prejudice. Aequieseense of plaintiff in the abandonment of his cause of action can only be based upon his attorney’s silence after consenting to the vacatur of the service of the summons. In our opinion this is too tenuous a ground upon which to base such a drastic result (cf. Bissell V. Village of Williamsville, 141 Mise. 758, 759). Christ, Acting P. J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.

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Bluebook (online)

29 A.D.2d 685, 287 N.Y.S.2d 149, 1968 N.Y. App. Div. LEXIS 4762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glass-v-glass-nyappdiv-1968.