Sibley v. Gamble

¶1Motion granted to the extent of dismissing appeal unless records and appellants’ briefs are filed and served on or before March 10, 1970. Memorandum: It is impossible to determine upon the moving papers whether or not the issues in this appeal are res judicata by reason of our prior decision (33 A D 2d 994) between the same parties. Furthermore if, as plaintiff contends, there was an agreement or stipulation between the parties that the decision in the prior appeal should be determinative of the issues in this appeal, the proper procedure is to move at Special Term to compel performance thereof or, if necessary, to institute a separate action (cf. 2 Carmody-Wait 2d, Hew York Practice, §§ 7:15, 7:16).