Schwartz v. Klar

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

Decided April 7, 1911

Appellate Division of the Supreme Court of the State of New York · decided 1911-04-07

■Appeal by the defendants, Samuel Klar and another, doing business ás Klar Brothers, from, a judgment of the Supreme ’ Court in favor of the plaintiff, entered' in the office of the clerk of the county of New York on the 15th day of April, 1910, upon the decision of the court rendered after a trial at the New York Special Term. .

Decided 1911-04-07

Ingraham, P. J. (concurring):

¶1I fully concur with Mr. Justice Dowling in his opinion. I wish to add, however, that it seems, to me that the execution of this stipulation was of itself a settlement and determination of this action which prevented its continuance for any purpose. The stipulation was set up. by supplemental answer as a defense to the action and its effect was, I think, a final determination of this action and the plaintiff’s remedy, if the terms of the stipulation were not complied with, was a new action, based upon it.

¶2Judgment reversed, new trial ordered, costs to appellants to abide event.'