Opinion
November 17, 1939.
Appeal from Supreme Court of New York County, DINEEN, J.
Harold H. Corbin of counsel [ Francis B. Delehanty, Jr., and Harris Jay Griston with him on the brief; Harris Jay Griston, attorney], for the appellant.
Lewis A.R. Innerarity of counsel [ Mahlon B. Doing with him on the brief; Coudert Brothers, attorneys], for the respondent.
Present — MARTIN, P.J., TOWNLEY, UNTERMYER, COHN and CALLAHAN, JJ.
Since the plaintiff's right to file the stipulation for judgment deposited under the escrow stipulation was in dispute and the defendant had demanded arbitration in accordance with the terms of the escrow stipulation, the judgment entered thereon was not authorized and was properly vacated by the court. The court had no power, however, on such a motion to open the defendant's default and permit him to answer in violation of the agreement and stipulations of the parties, even though that agreement and those stipulations were claimed by the defendant to have been procured by fraud. ( Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435.)
The orders should be modified by eliminating so much thereof as opens the defendant's default and allows the defendant to interpose an answer to the complaint, and as so modified affirmed, without costs.
Orders unanimously modified by eliminating so much thereof as opens the defendant's default and allows the defendant to interpose an answer to the complaint, and as so modified affirmed, without costs.