Santini Bros. v. Smith , 293 N.Y.S. 765 ( 1937 )

Per Curiam.

The stipulation is enforcible but its meaning is sufficiently ambiguous to require the taking of oral proof of the surrounding facts and circumstances to determine the true meaning and intention of the parties.

The order appealed from entered December 4, 1936, should be reversed and the matter remitted to an official referee to take testimony and report to the Special Term, disposition of the motion to be held in abeyance until the coming in of the referee’s report. The order denying motion for resettlement should be affirmed.

■ Present — Martin, P. J., McAvoy, O’Malley, Dore and Cohn, JJ.

Order entered December 4, 1936, unanimously reversed and the matter remitted to an official referee to take testimony and report . to the Special Term, disposition of the motion to be held in abeyance until the coming in of the referee’s report. Order denying motion for resettlement unanimously affirmed.

Settle order on notice.