Hammer v. Hammer , 205 N.Y.S.2d 911 ( 1960 )

The motion to amend the decision is denied. The determination of this appeal was made on the record as expressly stated in the memorandum of this court. The reply affidavit of plaintiff’s attorney, sworn to May 18, 1959, alleges the defendant knew at the time the stipulation was entered into that the plaintiff intended to supplement the provision for her support therein, and towards that end had taken a reporter’s examination. Plaintiff’s answering and reply briefs argued that the defendant’s knowledge was ground for affording the plaintiff a hearing on the provision for support contained in the decree to the extent that it was at variance with the stipulation made before the court on May 15, 1957. The record and briefs of the defendant contain no denial of the plaintiff’s statement and do not respond to plaintiff’s argument. Moreover, on this application defendant fails to state his position with regard to the claim of the plaintiff. Defendant’s final opportunity to meet plaintiff’s claim, of which he did not avail himself, was on the argument of the appeal. The argument did not, under the circumstances, affect the result compelled by the record and briefs. There is no basis therefore for the assumption that the failure of the defendant’s attorney on the argument to challenge plaintiff’s contention was given the effect of a concession. Concur —Botein, P. J., Breitel, Rabin and McNally, JJ.