Donovan v. Twist , 104 N.Y.S. 1 ( 1907 )

Cochrane, J.:

At.a trial of this action in September, 1902, after plaintiff had rested, he at the-request of defendant and, as he says, desiring to shorten the trial and relieve the defendant from calling witnesses, made the following concession': “ It is conceded, that the mortgagor William W. Smith died intestate about sixteen years,ago, leaving a wife, Ann Smith, and one daughter, Caroline Smith Essex, the • defendant’s Twist^* grantor, as his only child and only heir at law, and that the mortgagor’s wife, Ann Smith, died about two years ago.”

Plaintiff recovered a-judgment which was reversed. (85 App. Div. 130.) Another trial was had in October, 1903, when defendant sought to introduce ip evidence the above stipulation. Plaintiff objected. The trial was suspended for the purpose of permitting plaintiff to make a motion- to he relieved from such stipulation. ...Such motion was made and resulted in an order relieving him therefrom, from which order jhe present appeal was taken.

" The record'now before us does not' disclose the nature of the 'litigation further than that in some way it concerns a mortgage; nor does it disclose wliy it is essential to prove the death of William W. Smith, or the importance of the admission from which the plaintiff seeks relief. Knowledge of such facts, however, is probably unnecessary for the determination of this appeal. '

The rule undoubtedly is that á general stipulation made in the progress of a litigation'extends throughout the litigation, unless the court on special application based on equitable grounds grants relief therefrom. (Fortunato v. Mayor of N. Y., 74 App. Div. 441; Clason v. Baldwin, 152 N. Y. 204, 211; Owen v. Cawley, 36 id. 600, 606.)

The stipulation in question was made at defendant’s request and ■ solely for his accommodation. It in no way benefited the plaintiff. It was gratuitous and gave to the defendant the benefit of a fact on the first trial which lie probably could not have proved. It now fairly appears that the fact stipulated as to the death of Smith is erroneous, or at least very doubtful, and defendant in his opposing affidavit does not claim or even intimate that Smith is dead. At the first trial his death seems to have been assumed by both parties, but subsequent investigation fails to verify suelqassumption. I can conceive of no greater equity which should move the court to relieve a party from á stipulation than that the stipulation does not speak the truth. If the defendant had been misled by this stipula- . tion or were placed in any more unfavorable position because thereof, he probably should not lose its benefit.' But such is not the case. For his own accommodation he procured the plaintiff to make this stipulation -whereby the latter was in no respect benefited and which now turns out to state a fact which cannot be established and of very doubtful accuracy to the prejudice of the plaintiff. I see no reason 3vhy the defendant, under such circumstances, should ■ have the benefit of a fact ivhich may'not exist.

The order should be affirmed, with ten dollars costs and disbursements. ■

All concurred.

Motion denied, without costs. Order affirmed, with ten dollars costs and disbursements. -

* Sto.