Case v. Beloe — 109 N.Y.S. 168

Majority

p. 168

CASE v. BELOE et al.

(Supreme Court, Appellate Division, Second Department.

March 11, 1908.)

Headnote

Stipulations—Order—Validity.

An order of the court, which carries out the terms of an offer of settlement made by one party to a suit and properly accepted by the adverse party, is valid.'

Appeal from Special Term, Kings County.

Action by David K. Case, individually and as trustee, against Sarah Cecile Beloe, as executrix of Charles R. Porterfield, deceased, and oth

p. 169

ers. From so much of an order as directs the payment by the substituted trustee of $1,000 to plaintiff’s attorneys as the condition of the withdrawal of plaintiff’s appeal from the judgment, Sarah Cecile Beloe appeals. Affirmed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

David Bernstein, for appellant.

T. Ellett Hodgskin, for respondent.

The plaintiff appears to be insolvent, and a reversal of the judgment upon appeal would result in further depletion of the trust fund, while an acceptance of the condition of the withdrawal of the appeal will end the controversy between the plaintiff and the substituted trustee, and also remove possibility of an action by the plaintiff to recover from the appellant the excess amount paid to her testator. Originally the claim of the plaintiff’s attorneys was $7,500. By agreement this was reduced to $3,500. The referee allowed them $500, and found that $2,000 in addition would have been a proper credit, if paid. This $2,000 Mr. Justice Marean allowed, and the $1,000 in question here makes up the amount of $3,500. The order simply carries out the terms of the offer of settlement, which it appears was not improperly accepted.

The order, in so far as appealed from, should be affirmed, with $10 costs and disbursements. All concur.