Sartori v. City of New York, 258 A.D. 904

Sartori v. City of New York

258 A.D. 904 | N.Y. App. Div. | 1939

Order of resettlement, granting on certain conditions appellant City of Hew York’s motion to amend the answer so as to be relieved from an admission of operation and control contained therein, modified by striking from the ordering paragraphs the provision requiring the corporation *905counsel to stipulate respecting the conditions imposed and substituting therefor a provision that the City’s application is granted on condition that it procure the appearance of the board of education of The City of New York in the action as a party defendant to litigate the plaintiffs’ claim on the merits, as though the statutory provisions, if any, had been the subject of compliance by the plaintiffs and as if an action had been begun against that defendant at the time this action was begun against the City of New York; and further providing that in the event the City fails to comply with such terms the motion of the appellant to amend its answer is denied. As so modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to the respondents. The time of the appellant to comply with the above conditions and to serve its amended answer is extended until five days from the entry of the order hereon. The City is no different from any other litigant when it applies to the court for a favor. The favor which it here seeks could only properly be granted on terms that would safeguard the plaintiffs’ rights. Such terms can be imposed without their resting upon any stipulation of the corporation counsel. The cases invoked respecting the lack of power of the corporation counsel to stipulate away statutory rights have no application to the situation herein. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.