Rice v. Viemeister

Appellate Division of the Supreme Court of New York

Rice v. Viemeister

25 A.D.2d 815, 270 N.Y.S.2d 172, 1966 N.Y. App. Div. LEXIS 4541

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

DecidedApril 7, 1966

StatusPublished

This text of 25 A.D.2d 815 (Rice v. Viemeister) 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.

Bluebook

Rice v. Viemeister, 25 A.D.2d 815, 270 N.Y.S.2d 172, 1966 N.Y. App. Div. LEXIS 4541 (N.Y. Ct. App. 1966).

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Opinion

Order unanimously reversed, without eosts of this appeal to either party, and motion granted. Memorandum: Denial of defendant’s motion to open a judgment of foreclosure and sale entered ex parte on a conditional stipulation without authorization. of an ex parte entry under all the circumstances demonstrated here was an improvident exercise of discretion and in accordance with the liberal practice provisions of CPLR 3025 (subd. [b]) leave to serve an amended answer should have been granted. The granting of the relief sought would clearly be in the interest of justice where the provisions of the conditional stipulation on which the judgment was entered were either unperformable or were the subject of misunderstanding on the part of the parties. We are not concerned with a motion to set aside a stipulation as was true in Yonkers Fur Dressing Co. v. Royal Ins. Co. (247 N. Y. 435) where the stipulation itself terminated the litigation but with the power of the court on motion to vacate its own judgment. (Appeal from order of Wyoming County Court denying defendant’s motion to open the judgment of foreclosure and sale and for leave to serve a proposed amended answer.)

Present — Williams, P. J., Bastow, Goldman, Del Vecehio and Marsh, JJ.

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Order unanimously reversed, without eosts of this appeal to either party, and motion granted. Memorandum: Denial of defendant’s motion to open a judgment of foreclosure and sale entered ex parte on a conditional stipulation without authorization. of an ex parte entry under all the circumstances demonstrated here was an improvident exercise of discretion and in accordance with the liberal practice provisions of CPLR 3025 (subd. [b]) leave to serve an amended answer should have been granted. The granting of the relief sought would clearly be in the interest of justice where the provisions of the conditional stipulation on which the judgment was entered were either unperformable or were the subject of misunderstanding on the part of the parties. We are not concerned with a motion to set aside a stipulation as was true in Yonkers Fur Dressing Co. v. Royal Ins. Co. (247 N. Y. 435) where the stipulation itself terminated the litigation but with the power of the court on motion to vacate its own judgment. (Appeal from order of Wyoming County Court denying defendant’s motion to open the judgment of foreclosure and sale and for leave to serve a proposed amended answer.)

Present — Williams, P. J., Bastow, Goldman, Del Vecehio and Marsh, JJ.

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Bluebook (online)

25 A.D.2d 815, 270 N.Y.S.2d 172, 1966 N.Y. App. Div. LEXIS 4541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-viemeister-nyappdiv-1966.

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