21 A.D.2d 759 | N.Y. App. Div. | 1964
Judgment and order, dated December 6, 1963, and order, dated November 18, 1963, both entered December 10, 1963, granting plaintiff’s motion to amend caption and enter judgment on stipulation of settlement and denying the defendant’s cross motion to dismiss for failure to prosecute, unanimously modified, on the law, with costs to defendant-appellant, by eliminating the second and third ordering paragraphs of the December 6 judgment and order directing the enforcement of the stipulation and the entry of judgment, and so much of the November 18 order as grants entry of judgment, and that portion of plaintiff’s motion seeking entry of judgment is denied, with costs to defendant-appellant, and the judgment and orders insofar as appealed from are otherwise affirmed. The recorded stipulation of settlement in open court was conditioned on signing of a general release and stipulation of discontinuance by the then plaintiff personally, to the express exclusion of any personal representative. Signature by the subsequently appointed administratrix did not constitute performance. Since the condition was not fulfilled, the stipulation may not be enforced (see, e.g., General Payment Co. v. Elliot, 7 A D 2d 919; Kawata v. Barry, 237 App. Div. 608; 15 C. J. S., Compromise and Settlement, §§ 44, 45). Defendant has not appealed from the portions of the judgment and orders that amend the caption. While defendant appeals from the denial of its cross motion to dismiss, it now states contradictorily that the action has been dismissed pursuant to rule 302 of the Rules of Civil Practice. Consequently, there is no occasion for considering the denial of its cross motion to dismiss. Settle order on notice. Concur—Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.
