McLoughlin v. Belmont — 105 N.Y.S. 362

Majority

p. 362

(120 App. Div. 873)

McLoughlin v. Belmont et al.

(Supreme Court, Appellate Division, First Department.

June 28, 1907.)

Headnote

Appeal—Disposition—Affirmance—Stipulation.

Where, on appeal from an order denying defendant’s motion to refer the issues to a single referee for trial in an action on a contract, plaintiff stipulates that he will waive the right to recover upon a quantum meruit and rest his right solely upon the express contract alleged in the complaint, the order will be affirmed.

Appeal from Special Term, New York County.

Action by Joseph F. McLoughlin against August Belmont and another. From.an order denying their motion to refer the issues to a'single referee for trial, defendants appeal.

Affirmed, on conditions stated in opinion.

Argued before McLAUGIiLIN, INGRAHAM, CLARICE, LAMBERT, and HOUGHTON, JJ.

Alton B. Parker, 'for appellants.

George F. Stiebeling, for respondent.

Upon the argument of this appeal the plaintiff stipulated in open court that he would waive the right to recover upon a quantum meruit and rest his right to recover solely upon the express contract alleged in the complaint". .Upon this stipulation, the order will be affirmed, without costs, the stipulation to be incorporated in the order to be entered hereon, which is to be settled on notice.