Whipple Bros. v. Andrew

37 A.D.2d 677, 322 N.Y.S.2d 860, 1971 N.Y. App. Div. LEXIS 3679

Opinion

Appeal from an order of the Supreme Court, Chemung County, entered December 9, 1970, which denied a motion by defendants to be relieved from the terms of a stipulation of settlement of the above-entitled action, and to restore the ease to the trial calendar in Chemung County. This is an action by plaintiff, a corporation engaged in the lumber business, to recover $21,097.86 for goods sold and delivered to the defendants. In the course of trial, the trial court was advised by the attorneys for the parties that a settlement in the amount of $13,250 had been reached. Thereupon, the court, the stenographer, the attorneys for both sides, and appellant, Robert L. Andrew, retired to the court’s chambers, where the stipulation was placed on the record. Since the appellants have failed to establish facts which would justify setting aside the stipulation of settlement, the trial court’s refusal to grant the motion was a proper exercise of its discretion. Appellant Robert L. Andrew, an attorney, was present when the stipulation was placed on record, and both appellants were in court when the jury was advised that the case had been settled. At no time did they indicate disagreement with the stipulation. Furthermore, appellants offered no proof of fraud or overreaching on the part of the respondent. Order affirmed, without costs. Reynolds, J. P., Staley, Jr., Greenblott, Cooke and Simons, JJ., concur.