Wolf v. Bergano

263 A.D. 825, 31 N.Y.S.2d 309, 1941 N.Y. App. Div. LEXIS 5151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1941
• Status: Published

Opinion

Action for specific performance of a contract for the sale of certain real property and uncompleted building thereon. Order of the County Court of Nassau County, as resettled, denying plaintiff’s motion to punish defendants for contempt for failure to comply with a judgment in favor of the plaintiff, entered upon a stipulation and consent of the defendants, and granting defendants’ cross-motion (on certain conditions including the posting of a bond) to be relieved from the stipulation upon which th,e judgment for specific performance was entered, reversed on the law and the facts, with ten dollars costs and disbursements, the motion of plaintiff granted, and the cross-motion of defendants denied, with ten dollars costs. The action in which the court assumed to relieve the defendants from the stipulation of settlement was no longer pending. The record proof establishes that the defendants’ assertion that they were misled by representations of the plaintiff into entering into the stipulation of settlement is not in accord with the facts, and it appears that the plaintiff cannot be restored to his position prior to the entry of the judgment. On the merits, therefore, the cross-motion should have been denied (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Bond v. Bond, 260 App. Div. 781) and plaintiff’s motion granted. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur. Settle order on notice.