Opinion
November 4, 1959
Order granting motion to vacate a stipulation entered on the record in open court affirmed, on the law, on the facts, and in the exercise of discretion, without costs to any party. The stipulation did not constitute a contractual agreement dispositive of the disputed issues between the parties, as was involved in Yonkers Fur Dressing Co. v. Royal Ins. Co. ( 247 N.Y. 435). Rather the stipulation was one designed to provide an alternative method for resolving the disputed issues between the parties. The stipulation rested upon an assumption which was subsequently proven false, namely, that the Metropolitan John was, and would be, willing to designate a Canadian priest to be the presiding officer at the meeting to be held, under the terms of the stipulation, and who would resolve (virtually as an "arbitrator") various procedural questions that would arise therein. The assumption being untrue, the purported stipulation was wholly aborted. As a consequence the court had power, in its discretion, to relieve the several parties of a stipulation which was unperformable (cf. Goldstein v. Goldsmith, 243 App. Div. 268; see Tripp, A Guide to Motion Practice [rev. ed.], § 105, p. 302). It would be bootless, in the exercise of discretion, to remit the parties to a plenary action, it being undisputed on the record that the stipulation is unperformable according to its terms. The parties having had actual notice and having appeared on the present motion, there is no infirmity in the exercise of jurisdiction by the court.
Concur — Breitel, J.P., M.M. Frank, Valente, McNally and Stevens, JJ.