Fischer v. Roche

¶1concurs in part and dissents in part in a memorandum as follows: We are all agreed that the order entered September 13, 1978, which denied the cross motion to dismiss, should be affirmed. The basis for that order as stated by the Judge at Special Term was that “there has never been an adjudication of the rights of those petitioners, as captains, to have their promotion dates pushed back.” (Italics added.) There cannot be selective enforcement of a stipulation. (Matter of Abrams v Bronstein, 33 NY2d 488, 492.) Moreover, considering the subsequent proceedings, the original stipulation was superseded. The petitioners do not seek back pay but merely standing, and accordingly I would affirm the judgment entered November 20, 1979.