Hopkins v. Hopkins

97 A.D.2d 457, 467 N.Y.S.2d 426, 1983 N.Y. App. Div. LEXIS 20050

Opinion

In a matrimonial action, plaintiff appeals from so much of an order of the Supreme Court, Queens County (Dunkin, J.), dated August 25, 1982, as, upon the stipulation of the parties, directed that a money judgment in her favor and against defendant for attorney’s fees awarded in a judgment of divorce be paid out of the proceeds of the sale of the marital home before the remainder is divided evenly between the parties. Appeal dismissed, without costs or disbursements. Plaintiff is not aggrieved by the portion of the order she seeks to review (CPLR 5511) since it was made upon her stipulation (Matter of Benson v Connelly, 63 AD2d 733; 10 Carmody-Wait 2d, NY Prac, §§ 70:24, 70:81). Plaintiff cannot be relieved from a stipulation made before Special Term upon an appeal from the order entered pursuant to the stipulation. The proper remedy is a motion to set aside that stipulation. Lazer, J. P., Thompson, O’Connor and Brown, JJ., concur.