In re the Intermediate Accounting of Galasso — 35 N.Y.2d 319

Majority

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In the Matter of the Intermediate Accounting of Leonard Galasso as Coadministrator of the Estate of Millie Galasso, Also Known as Carmela Galasso, Deceased, Appellant. Peter Galasso, Respondent.

Argued. October 8, 1974;

decided November 14, 1974.

Daniel J. Pinsky for appellant.

I. The alleged settlement stipulation was not clear and complete. The Surrogate’s

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sceptical comment coupled with the conditions precedent to a final agreement negatived any finding of a clear and complete stipulation of settlement. (Matter of Dolgin Eldert Corp., 31 N Y 2d 1 ; Moylan v. Naylor, 12 A D 2d 854 ; Frost v. Stone, 4 A D 2d 780 ; Cost v. Benetos, 276 App. Div. 975 ; Thompson Med. Co. v. Benjamin Pharms., 4 A D 2d 504 ; Golden Arrow Films v. Standard Club of Cal., 38 A D 2d 813 , 30 N Y 2d 486 ; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435 ; Barry v. Mutual Ins. Co. of N. Y., 53 N. Y. 536 ; Humphries v. Shapiro, 187 App. Div. 96 .) II. Assuming arguendo, without conceding that the Appellate Division was correct in its finding that there was a settlement, paragraph 4 of its order as written is not justified by the record.

John J. Finn for respondent.

I. In denying objectant’s motion for specific performance of the stipulation of settlement, the trial court further demonstrated its partiality. (Moers v. Gilbert, 175 Misc. 733 , 261 App. Div. 957 .) II. Whether a stipulation of settlement made in open court and on the record is binding upon the parties and enforceable by the court or whether a party to the stipulation may be excused from his performance thereunder alleging an act or occurrence subsequent to the entering into of the stipulation. (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435 ; Matter of Lamberti, 181 Misc. 706 , 267 App. Div. 866 ; Thompson Med. Co. v. Benjamin Pharms., 4 A D 2d 504 ; Frost v. Stone, 4 A D 2d 780 ; Matter of Schlossberg v. Schlossberg, 62 Misc 2d 699 ; McManus v. New York Tel. Co., 14 Misc 2d 22 ; Golden Arrow Films v. Standard Club of Cal., 38 A D 2d 813 , 30 N Y 2d 486 .) III. The terms of the stipulation of settlement were clear and definite. (Matter of Meister, 72 Misc 2d 459 , 43 A D 2d 41 .) IV. The order of the Appellate Division is in compliance with and within the intention of the stipulation of settlement entered into by the parties in open court and on the record.

Millie Galasso died intestate on January 31, 1966. Letters of administration were issued on February 24, 1966 to two sons, Peter Galasso and Leonard Galasso. They, together with two other children of the decedent, were distributees of the estate. On October 2, 1970, Leonard Galasso filed an inter

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mediate accounting, to which Peter Gralasso filed objections. Thereafter, on May 9, 1972, the Surrogate’s Court, Bronx County, denied specific performance of a stipulation off settlement of all objections purportedly entered into on February 15, 1972.

The parties to this proceeding, after several'hearings, entered into a purported stipulation which was read into the record. By the terms of the stipulation, inter alia, Leonard Gralasso agreed to purchase for $15,000 the one-fourth interest in certain real property owned by his brother Peter. Less than a month later, Leonard Gralasso notified the objectant’s attorneys that circumstances had arisen which made it necessary for him to withdraw his offer to purchase his interest in the real property. Peter Gralasso then moved for an order directing Leonard to perform all the terms of the alleged stipulation of settlement made in open court and for specific performance of said settlement.

While it is true, as the Appellate Division noted, that stipulations of settlement are favored by the courts and will not be set aside in the absence of fraud or overreaching (cf. Matter of Hecht, 24 A D 2d 1001 ), we are unable to agree with the Appellate Division that the stipulation, as it appears from the record, was “ definite and complete ” (Matter of Dolgin Eldert Corp., 31 N Y 2d 1 , 10). What is clear from the record is that on February 11 and 15, 1972, the parties made an effort to reach such a stipulation. Nevertheless, on both days the parties were unable to agree to the withdrawal of all objections, and it cannot be said that a finally agreed upon stipulation was reached. We find very persuasive in this regard the fact that the Surrogate who participated in the purported settlement remarked towards the end of the February 15 hearing that “ I am still not sure it’s settled.” Counsel for the accountant replied with similar uncertainty, “ I hope this matter will be settled.” As we noted under analogous circumstances in Matter of Dolgin Eldert Corp. (supra, p. 11), “ [a]t best, it was an agreement to agree to the amplified terms of a future writing ”.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the order of the Surrogate’s Court, Bronx County, reinstated.

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Chief Judge Breitel and Judges Gtabrielli, Jones, Waohtler and Rabin concur; Judge Stevens taking no part.

Order reversed, without costs against the estate or any party, and order of Surrogate’s Court, Bronx County, reinstated.

Cases cited

Dolgin v. Dolgin 31 N Y 2d 1 N.Y. 1972-06-08 at 10 p. 320, p. 321
Frost v. Stone 4 A D 2d 780 N.Y. App. Div. 1957-07-15 p. 320
Thompson Medical Co. v. Benjamin Pharmaceuticals, Inc. 4 A D 2d 504 N.Y. App. Div. 1957-11-06 p. 320
Yonkers Fur Dressing Co. v. Royal Insurance 247 N. Y. 435 N.Y. 1928-03-27 p. 320
Barry v. Mutual Life Insurance 53 N. Y. 536 N.Y. 1873-10-10 p. 320
Moers v. Gilbert 175 Misc. 733 N.Y. Sup. Ct. 1941-01-15 p. 320
In re the Accounting of Lamberti 181 Misc. 706 N.Y. Sur. Ct. 1943-05-28 p. 320
Schlossberg v. Schlossberg 62 Misc 2d 699 N.Y. Fam. Ct. 1970-04-20 p. 320
McManus v. New York Telephone Co. 14 Misc 2d 22 N.Y. Sup. Ct. 1958-05-16 p. 320
In re the Estate of Meister 72 Misc 2d 459 N.Y. Sur. Ct. 1972-12-20 p. 320
In re the Estate of Meister 43 A D 2d 41 N.Y. App. Div. 1973-11-27 p. 320