Schwartz v. Leasehold Corp.

Appellate Terms of the Supreme Court of New York

Schwartz v. Leasehold Corp.

181 Misc. 666, 48 N.Y.S.2d 146, 1944 N.Y. Misc. LEXIS 1908

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 5, 1944

StatusPublished

Cited by2 cases

This text of 181 Misc. 666 (Schwartz v. Leasehold Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwartz v. Leasehold Corp., 181 Misc. 666, 48 N.Y.S.2d 146, 1944 N.Y. Misc. LEXIS 1908 (N.Y. Ct. App. 1944).

Pincite

Opinion

Memorandum

Per Curiam.

Rule 4 of the Rules of Civil Practice states an ancient rule designed to prevent fraudulent claims of oral stipulations. But where an oral stipulation is clearly shown and it is established that the parties have acted upon it, a defeated party will not be permitted to retract and take advantage of the omission of his adversary to require that the agreement be reduced to writing. Here the defendants, through counsel, not only made the oral agreement to extend the time for final submission but the defendants actually filed their brief on the last day agreed upon. Under the facts shown the decision of the Trial Justice was timely made. (People v. Stephens et al., 52 N. Y. 306; Zwecker v. Levine, 135 App. Div. 432.) On the merits the decision in favor of plaintiff was warranted on the evidence.

Judgment affirmed, with twenty-five dollars costs.

Concur: Hammer and McLaughlin, JJ. Dissenting: Edeb, J. I dissent and vote to reverse and to place case on the general calendar (N. Y. City Mun. Ct. Code, § 119; L. 1915, ch. 279, as amd.).

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Memorandum

Per Curiam.

Rule 4 of the Rules of Civil Practice states an ancient rule designed to prevent fraudulent claims of oral stipulations. But where an oral stipulation is clearly shown and it is established that the parties have acted upon it, a defeated party will not be permitted to retract and take advantage of the omission of his adversary to require that the agreement be reduced to writing. Here the defendants, through counsel, not only made the oral agreement to extend the time for final submission but the defendants actually filed their brief on the last day agreed upon. Under the facts shown the decision of the Trial Justice was timely made. (People v. Stephens et al., 52 N. Y. 306; Zwecker v. Levine, 135 App. Div. 432.) On the merits the decision in favor of plaintiff was warranted on the evidence.

Judgment affirmed, with twenty-five dollars costs.

Concur: Hammer and McLaughlin, JJ. Dissenting: Edeb, J. I dissent and vote to reverse and to place case on the general calendar (N. Y. City Mun. Ct. Code, § 119; L. 1915, ch. 279, as amd.).

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Bluebook (online)

181 Misc. 666, 48 N.Y.S.2d 146, 1944 N.Y. Misc. LEXIS 1908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-leasehold-corp-nyappterm-1944.

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