In re the Final Inventory & Accounting of Smith

Appellate Division of the Supreme Court of New York

In re the Final Inventory & Accounting of Smith

254 A.D. 839, 5 N.Y.S.2d 247, 1938 N.Y. App. Div. LEXIS 7880

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

DecidedJune 17, 1938

StatusPublished

This text of 254 A.D. 839 (In re the Final Inventory & Accounting of Smith) 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.

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In re the Final Inventory & Accounting of Smith, 254 A.D. 839, 5 N.Y.S.2d 247, 1938 N.Y. App. Div. LEXIS 7880 (N.Y. Ct. App. 1938).

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Opinion

Per Curiam.

Notwithstanding the order of the Supreme Court dated June 18, 1935, declaring Julia Lindsay to be competent the Special Term refused to give effect to the stipulation, dated February 4, 1936, entered into with the two committees and their sureties, settling all the matters in controversy. Since there was no evidence of any fraud or mistake in connection with the stipulation, the agreement of all parties in interest should have been given effect by the referee and the court.

The order, dated March 22, 1937, should be reversed and an order entered in accordance with the stipulation of February 4, 1936. The order, dated September 27 [26], 1934, should be modified by eliminating the provision directing the appellant surety company to file a final account; and the order dated June 27, 1935, should be modified by eliminating the provision for the appointment of a special guardian for Julia Lindsay, then competent.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order, dated March 22, 1937, unanimously reversed and an order directed to be entered in accordance with the stipulation of February 4, 1936. Order, dated September 27 [26], 1934, modified by eliminating the provision directing the appellant surety company to file a final account; and the order dated June 27,1935, modified by eliminating the provision for the appointment of a special guardian for Julia Lindsay, then competent. Settle order on notice.

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Per Curiam.

Notwithstanding the order of the Supreme Court dated June 18, 1935, declaring Julia Lindsay to be competent the Special Term refused to give effect to the stipulation, dated February 4, 1936, entered into with the two committees and their sureties, settling all the matters in controversy. Since there was no evidence of any fraud or mistake in connection with the stipulation, the agreement of all parties in interest should have been given effect by the referee and the court.

The order, dated March 22, 1937, should be reversed and an order entered in accordance with the stipulation of February 4, 1936. The order, dated September 27 [26], 1934, should be modified by eliminating the provision directing the appellant surety company to file a final account; and the order dated June 27, 1935, should be modified by eliminating the provision for the appointment of a special guardian for Julia Lindsay, then competent.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.

Order, dated March 22, 1937, unanimously reversed and an order directed to be entered in accordance with the stipulation of February 4, 1936. Order, dated September 27 [26], 1934, modified by eliminating the provision directing the appellant surety company to file a final account; and the order dated June 27,1935, modified by eliminating the provision for the appointment of a special guardian for Julia Lindsay, then competent. Settle order on notice.

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254 A.D. 839, 5 N.Y.S.2d 247, 1938 N.Y. App. Div. LEXIS 7880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-final-inventory-accounting-of-smith-nyappdiv-1938.