Katzenstein v. Amsterdam Equities, Inc.

272 A.D.2d 1050

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1947
• Status: Published

Opinion

Van Voorhis, J.

(concurring in result). The courts retain control over, procedural stipulations by the parties in actions and proceedings, and refuse to recognize them where they are inimical to the orderly administration of justice (Goldstein v. Goldsmith, 243 App. Div. 268). In deciding this appeal, it is not necessary to pass upon whether the courts ought to approve a stipulation dispensing with a statutory requirement that is so necessary to intelligent judicial review, and to other aspects of the administration of justice, as the making by the trial court of a statement of the facts which it deems essential to its decision, where the case is tried without a jury (Civ. Prac. Act, § 440; Hall v. Beston, 13 App. Div. 116; Shaffer v. Martin, 20 App. Div. 304; People. ex rel. Havron V. Dalton, 77 App. Div. 499; Matter of Scudder v. O’Connell, 272 App. Div. 251, and cases cited). The order appealed from herein should ■ be affirmed, in any event, since appellant is not entitled to have the judgment vacated on the ground that it is unsupported by a statement of. the facts deemed by the court to have been essential to its determination. The usual practice is to remit the case to the trial justice in order that the requisite state-' ment of facts may be made mine pro tunc (Shaul v. Fidelity & Deposit Co. of Maryland, 131 Misc. 401, affd. 224 App. Div. 773; Fuller v. Galeota, 268 App. Div. 949). This motion is not directed to that objective.

Glennon, J. P., Cohn, Callahan and Shientag, JJ., concur in decision; Van Voorhis, J., concurs in result in opinion.

Order affirmed, with $20 costs and disbursements;