Katz v. Joseph Rae Enterprises, Inc.

51 A.D.2d 575, 379 N.Y.S.2d 376, 1976 N.Y. App. Div. LEXIS 10858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1976
• Status: Published

Opinion

In an action inter alia for real estate brokerage commissions, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 30, 1975, which (1) granted defendants’ motion to vacate a certain stipulation of settlement and (2) restored the action to the Trial Calendar. Order reversed, without costs, and motion remitted to Special Term for a hearing and new determination as to the following issues: (1) whether defendant Joseph Rae’s attorney was induced to enter into the stipulation of settlement, insofar as it also committed defendant Joseph Rae personally to pay the agreed amount of the settlement, by reason of a misrepresentation by plaintiff; (2) if so, whether defendants’ attorney was justified in relying thereon; and (3) whether defendants’ attorney was authorized to sign the stipulation of settlement insofar as it committed defendant Joseph Rae to a personal obligation. Under all of the circumstances of this case, as set forth in the affidavits, we find that a hearing should be held at which testimony may be taken concerning the issues enumerated above (see CPLR 2218; Sawyer v Beck Ind., 40 AD2d 661; Levine v Levy, 29 AD2d 827; Anders v Anders, 6 AD2d 440; Solins v Klosky, 8 AD2d 848). Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.