Majority
p. 1126SAFFIER, Appellant, v. MOTCHKOL, Respondent. (Supreme Court, Appellate Division, Second Department. October 18, 1901.)
Headnote
Action by Sam Saffier against Yon Motchkol. From a judgment in favor of defendant, plaintiff appeals.Reversed.
Abraham» B. Schleimer, for appellant.
This judgment was entered upon a written stipulation, signed by the defendant’s attorney, that, in consideration of the plaintiff refraining from issuing execution one week, the answer should be withdrawn and judgment should be taken against him for the claim demanded. The magistrate held that the plaintiff must nevertheless prove his case. Assuming this rule to be correct, we are of opinion that the case was proven. There is some obscurity as to the time when the demands for return of the property were made, but it
p. 1127
is clear that such a demand was made before the action was commenced, and we cannot say that it has been established that no demand was made before default. The judgment should therefore be reversed, and under the circumstances, in view of the written stipulation for judgment, judgment is ordered for the plaintiff, with costs and costs of the appeal.