Langlois v. Langlois

7 A.D.2d 779, 179 N.Y.S.2d 950, 1958 N.Y. App. Div. LEXIS 4099

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1958
• Status: Published

Opinion

Appeal by plaintiff from an order of the Supreme Court, Warren County Special Term, which denied a motion to set aside a settlement of the above-entitled action and to restore the case to the Trial Term Calendar of Supreme Court, Washington County. This matter was before this court at a prior term and was sent back for another hearing (5 A D 2d 75). The ease was reached for trial at a Trial Term of the Supreme Court for Washington County on January 19, 1956. After a jury had been impaneled a conference was held in the chambers of the Trial Justice, and the overwhelming weight of testimony by way of affidavits indicates that plaintiff as well as respective counsel for the parties were present. A settlement of $10,000 in favor of the plaintiff was arrived at in the presence of the Trial Justice, and the case was thereafter stricken from the calendar. Plaintiff’s contention now is that he was mentally incompetent at the time to understand the nature and purport of the settlement, and that the amount fixed was grossly inadequate. We think the order should be sustained. The proof of incompetency is not convincing in the light of other evidence. Plaintiff was represented by able counsel, and the settlement took place in the presence of the Trial Justice, a stenographer, as well as counsel for both sides. There appears to have been no suggestion of incompetency advanced at the time, nor were any signs of such a condition noted; and there is other proof, such as plaintiff’s examination before trial, taken less than a month before the settlement, which would indicate that plaintiff’s mental faculties were not impaired. Order unanimously affirmed, without costs. Settle order on notice. Present — Foster, P. J., Bergen, Gibson, Herlihy and Reynolds, JJ.