Thomas v. Jamaica Buses, Inc.

5 A.D.2d 843, 170 N.Y.S.2d 852, 1958 N.Y. App. Div. LEXIS 6999

Opinion

In an action to recover a balance due under a construction contract, the appeal is from an order directing appellants to consummate a settlement agreement. Order affirmed, with $10 costs and disbursements. No opinion. Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur; Nolan, P. J., dissents and votes to reverse the order and to deny the motion, with the following memorandum: If it be assumed that a superseding agreement or an execu-tory accord may be enforced by motion, the record presented does not establish any such agreement or accord which is enforeible against appellants. (Cf. Atterbury v. Walsh Paper Corp., 261 App. Div. 529, affd. 286 N. Y. 578.) Nor is there any stipulation between the parties for the entry of judgment.