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eBook details

• Title: Kirkeby-Natus Corporation v. Daniel Gevinson Et Al.
• Author : Supreme Court of New York
• Release Date : January 11, 1969
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 68 KB

Description

Order unanimously reversed, without costs, and matter remitted to Trial Term of Onondaga Supreme Court for further proceedings
in accordance with the following memorandum: In this litigation concerning the existence and tenor of an alleged agreement
settling a consolidated action, respondent by an order to show cause attempted to enforce the alleged oral agreement on the
grounds that it constituted a stipulation of settlement entered into under circumstances substantially equivalent to "open
court" and was relied upon by the respondent to its prejudice. The affidavits are furnished by opposing counsel and raise
sharply contested issues among which are the time of the alleged agreement and the authority of appellants' counsel. It would
be premature to determine the applicability of CPLR 2104 in enforcing the alleged stipulation of settlement without first
resolving the issues of fact raised by respondent's motion. Where there is direct conflict between the parties not only as
to whether any settlement was ever reached, but also, if reached, the terms thereof, that conflict should be resolved upon
common-law evidence before a court or referee, pursuant to CPLR 2218 (Levine v. Levy, 29 A.D.2d 827). It is difficult to resolve
sharply contested issues of this nature by affidavits alone. If it is decided as a result of the hearing that an agreement
existed, consideration should also be given to the issue of prejudice raised by respondent in determining whether CPLR 2104,
assuming it is found applicable, may be invoked (Mutual Life Ins. Co. v. O'Donnell, 146 N. Y. 275; Langlois v. Langlois, 5
A.D.2d 75; 2A Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 2104.04).

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