Opinion
February 10, 1967
Appeal from an order of the Supreme Court, Schenectady County, directing the specific performance of a stipulation entered into by the litigants and their counsel in open court. On November 3, 1965, the date set for the trial of this marital proceeding, a stipulation was entered into in open court designed to establish the property rights of the litigants. Proof was then taken in the separation action, but no findings of fact, conclusions of law or decree have as yet been entered. Thereafter, on November 19, 1965, the instant motion for specific performance based on the stipulation was made. The sole question here is the authority of Special Term to enforce the stipulation summarily on motion. In our view it did have such authority. As long as an action is pending, the court retains continued control over all proceedings therein ( Barry v. Mutual Life Ins. Co. of N.Y., 53 N.Y. 536; Thompson Medical Co. v. Benjamin Pharmaceuticals, 4 A.D.2d 504; Colla-Negri v. Colla-Negri, 8 Misc.2d 415). Here unlike Ariel v. Ariel ( 5 A.D.2d 168) relied on by appellant the stipulation did not discontinue the action but rather by its very terms contemplated a continuance of the action and thus a separate action was not mandated. Order affirmed, with costs. Gibson, P.J., Herlihy, Reynolds and Staley, Jr., JJ., concur in a memorandum decision by Reynolds, J.