Harris v. Elliott — 19 A.D. 60

Majority

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Richard Duncan Harris, Respondent, v. George Elliott and George L. Elliott, as Executors, etc., of John Elliott, Deceased, E. F. Riggs, Laureson Riggs, Thomas Hyde and Charles C. Glover, Comprising the Firm of Riggs & Co., Appellants, Impleaded with Others.

Headnote

Compromise stipulation—it cannot be enforced by a swmma/ry order.

"Where the parties to an action have entered' into a compromise stipulation, under which, in consideration oí a certain payment to be made by the plaintiff, he is entitled to have the action discontinued without costs, and the plaintiff, after making a partial payment, refuses to pay the balance, alleging that he is entitled to certain offsets, the Special Term has no power to make an order compelling him to pay the balance, with the consequence of being adjudged in contempt in case of his failure to perform. In such a case the parties seeking payment of the balance must be remitted to the remedy of proceeding with their action, or of bringing a suit upon the stipulation.

Appeal by the defendants, George Elliott and another, as executors, etc., of John Elliott, deceased, and others, from, an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 5th day of May, 1897, denying a motion for an order requiring the plaintiff to pay to such defendants, or tlieir attorneys, a certain sum of money. . ■

Imcíus EE. EEeers, for the appellants.

Albert Stiehney and Otto 0. Wierum, Jr., for the respondent.

■ This is simply an application to the court to enforce, summarily, •compliance by the plaintiff with the unperformed part of a stipulation, entitled and made in this action between the parties thereto, and providing for a settlement and compromise of the matters in controversy between them. The plaintiff agreed to pay to- the moving party $8,077.96, and in so doing was to be entitled to have the action discontinued or a decree entered, without costs. He has paid $5,000 on account of this settlement and adjustment, but refuses to pay the balance, alleging that he is entitled to certain offsets or counterdemands against it. Concerning the merits of his

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claim in that regard we have now nothing to say. It is plain that he cannot be proceeded against on the stipulation as an independent basis for summary action by the court to compel him to complete its terms with the consequence of being adjudged in contempt for not doing so. This is not in any respect a proceeding against an attorney as such. All the relations existing between him and the moving parties are contract relations. He brought his suit to have them defined and adjusted. The moving parties have seen fit to treat with him in that action ; have recognized it and agreed to settle and compromise it, and that compromise has been carried out in part. The moving parties have a full remedy. Either the suit can proceed, and they may secure their rights-by judgment, or an action lies on the stipulation. . The order must be affirmed, with ten dollars, costs and disbursements.

Present — O’Brien, Eumsey, Patterson, Ingraham and Parker, JJ.

Order affirmed, with ten dollars costs and disbursements.