Mandelbaum v. Silberfeld

186 Misc. 244, 60 N.Y.S.2d 130, 1946 N.Y. Misc. LEXIS 1836

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 11, 1946
• Status: Published

Opinion

Memorandum Per Curiam.

Defendant made a motion in the action for reargument of defendant’s motion to dismiss plaintiff’s complaint. When it came on for hearing, the motion and action were settled, the latter for $1,500. A written stipulation entitled in the action provided for the settlement, and the manner and time of payment in three equal amounts, the execution of a general release, to be held, pending payment, by plaintiff’s attorneys, that a judgment previously entered for $2,278.90 would stand as security for the payment of the $1,500, and the motion be deemed withdrawn. We deem these facts as bringing the matter within the rule of Goldstein v. Goldsmith (243 App. Div. 268) and not that of Yonkers Fur Dressing Co. v. Royal Ins. Co. (247 N. Y. 435). As nontimely payment of the last installment was the only objection made in rejecting receipt thereof, we also rule that such others as were presented in opposition to this motion below to require acceptance were waived.

•Order affirmed, with $10 costs and disbursements.

Hammer, McLaughlin and Eder, JJ., concur.

Order affirmed.