Begen v. Curtis — 81 A.D. 91

Majority

p. 91

Sadie M. Begen, Plaintiff, v. Sarah Louise Curtis and Others, Defendants.

Headnote

Submission of a controversy—it must state that it contains a statement of the facts agreed upon.

A record purporting to be a submission of a controversy on an agreed statement of facts pursuant to section 1379 of the Code of Civil Procedure, which does not contain a stipulation between the parties that the papers constitute a case containing a statement of the facts which have been agreed upon, is fatally defective.

The defect is not cured by a memorandum opposite the title, to the effect that the record is a case agreed upon in a controversy submitted without action pursuant to the Code of Civil Procedure.

Submission of a controversy upon an agreed statement of facts, ■pursuant to section 1279 of the Code of Civil Procedure.

Edwin L. Ford, for the plaintiff.

I. M. Pettus, for the defendants.

The proposed submission in this case contains no agreement as to the facts which are admitted and form the subject of the alleged submission. Opposite the title there is a memorandum to the effect that it is a case agreed upon in a controversy submitted without action, pursuant to the Code of Civil Procedure.- That does not form any part of the submission, but is merely descriptive.

And, furthermore, it is not stated that the case agreed upon contains a statement of the facts as required by the Code (§ 1219). There is no stipulation whatever between the parties that the papers constitute a case containing a statement of the facts which has been agreed upon.

The submission must, therefore, be dismissed, with leave to file a new. submission.

Present — Tan Brunt, P. J., C’Brien, Ingraham, McLaughlin and Laughlin, JJ.

Submission dismissed, with leave to file new .submission.