Madden v. Atkins ( 1960 )

Motions referred to the court which rendered the decision of May 23, 1960. Nolan, P. J., Beldoek, TJghetta, Christ and Pette, JJ., concur. Motion by defendant, New York Association No. 88 etc., to extend until July 20, 1960, the time of the parties to stipulate for a modification of the judgment appealed from in accordance with the decision of this court, dated May 23, 1960 and the order thereon entered June 13, 1960. None of the other parties opposes the motion; and the attorney for defendant Atkins has filed an affidavit stating he has no objection to the granting of the relief sought by the motion. Motion granted. Motion by plaintiffs to amend the decision of this court rendered May 23, 1960, so as to modify the judgment appealed from in accordance with a stipulation, dated June 27, 1960, between plaintiffs and the defendant New York Association No. 88, etc., a copy of which is annexed to the moving papers. None of the other parties opposes the motion; and the attorney for defendant Atkins has filed an affidavit stating he has no objection to the granting of the relief sought by the motion. Motion granted. Said decision is amended by striking out its second paragraph and by substituting therefor the following two paragraphs: (1) Judgment insofar as it is in favor of the five plaintiffs, Madden, Liddy, Polachek, Sohnen and Friedman, against defendant New York Association No. 88 of Masters and Mates of the National Association of Mates & Pilots of America, Inc. (now known as the International Organization of Masters, Mates & Pilots, Local 88), modified on the law and the facts as follows in accordance with the stipulation, dated June 27, 1960, between plaintiffs and said defendant: (a) By striking out from the first decretal paragraph of the judgment the provision fixing at $40,384 the amount of plaintiff Madden’s judgment, and substituting therefor the stipulated amount of $36,389; (b) By striking Out from the second decretal paragraph of the judgment the provision fixing at $47,826 the amount of plaintiff Liddy’s judgment, and substituting therefor the stipulated amount of $43,901; (e) By striking out from the third decretal paragraph of the judgment the provision fixing at $37,131 the amount of plaintiff Polachek’s judgment, and substituting therefor the stipulated amount of $36,692; (d) By striking out from the fourth decretal paragraph of the judgment the provision fixing at $34,283 the amount of plaintiff Sohnen’s judgment, and substituting therefor the stipulated amount of $33,889; (e) By striking out from the fifth decretal paragraph the provision fixing at $33,833 the amount of plaintiff Friedman’s judgment, and substituting therefor the stipulated amount of $33,251; and (f) By striking out from the last-mentioned decretal paragraph the provision for an aggregate recovery of $193,457 in favor of said five plaintiffs, and substituting therefor a provision for an aggregate recovery in their favor of $184,122. As so modified, the judgment, insofar as it is in favor of said five plaintiffs, affirmed, without costs; and action severed as to them. Findings of fact which may be inconsistent herewith are reversed and new finds are made as indicated herein. (2) Judgment insofar as it is in favor of plaintiff Dipietrantonio against defendant Atkins, reversed, without costs and matter remitted to the Special Term for further proceedings consistent herewith, unless within 30 days after the entry of the order hereon said plaintiff and said defendant shall stipulate to a modification of said judgment (insofar as it affects them) in the respects hereinafter indicated, in which event the judgment as so modified by their stipulation is affirmed, without costs. Said decision of May 23, 1960, is further amended by striking out its fifth paragraph and by substituting therefor the following paragraph: If plaintiff Dipietrantonio and defendant Atkins can agree and stipulate upon a recomputation of the damages and interest and upon an appropriate modification of the judgment in accordance with the foregoing, the judgment as so modified by their stipulation will be affirmed as to them; otherwise, the matter as to them must be remitted to the Special Term for such reeomputation on the basis of the evidence adduced before the Official Referee and such additional evidence as may be required by the Special Term and as the parties may be advised to submit. Rolan, P. J., Beldock, Ughetta, Christ and Brennan, JJ., concur.