Hegeman v. Conrad

284 A.D. 969, 134 N.Y.S.2d 845, 1954 N.Y. App. Div. LEXIS 4268

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1954
• Status: Published

Opinion

In an action to set aside and cancel of record two deeds made by plaintiffs granting to defendant an undivided one-third interest in the fee of two parcels of real property, and for other relief, defendant appeals from so much of an order as sets aside a stipulation settling the action, as grants leave to serve an amended complaint, and as restores the action to the Special Term calendar for trial. Defendant appeals from a second order which granted plaintiffs’ motion to vacate and set aside the findings of fact and the judgment which had been made in pursuance of the stipulation of settlement. The first above-mentioned order is modified by striking therefrom the first, second and third ordering paragraphs and by substituting in lieu thereof provisions to the effect that plaintiffs’ motion insofar as it seeks to set aside the stipulation, to serve an amended complaint, and to restore the case to the calendar be denied. As so modified, order affirmed. The second above-mentioned order is reversed and the motion to vacate and set aside the findings and judgment is denied. Appellant is to have a single bill of $10 costs and disbursements upon the determination of the appeals. The stipulation of settlement terminated the causes of action and brought into being new liabilities in substitution therefor, and also brought about termination of the litigation. Under the circumstances Special Term was without power to vacate the stipulation and the findings and the judgment upon motion made in the terminated action. (Yonkers Fur Dressing Co. v. Boyal Ins. Co., 247 N. Y. 435; Wolf v. Bergamo, 263 App. Div. 825.) Nolan, P. J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur. [See post, p. 1053.]