Filed Date： 9/23/1957
Status： Precedential
Modified Date： 11/1/2024
(1) Motion by respondent for reargument denied, without costs. (2) Motion by respondent to amend the decision of July 24, 1957, denied, without costs. (3) The argument of said motions brought into somewhat sharper focus the question as to the intent and effect of the stipulation whereby the issues of the second cause of action were tried but proof as to enhancement of value deferred. Appellant contends that the decision of the first cause of action favorably to respondent foreclosed decision of the second and, therefore, that the findings upon the latter cause of action, upon which no judgment was entered, were not properly before us. It seems best that the question as to the effect of the stipulation be passed on in the trial court, where it was made. Accordingly, upon this court’s motion, the decision herein is amended by striking out the direction that the case be remitted to the Trial Term to take proof of enhancement of value and render judgment accordingly, with costs to respondent to abide the event, and be further amended to provide that the first and second causes of action be severed and that, as to the second cause of action, the case be remitted to the Trial Term for disposition, without costs. We neither approve nor disapprove the findings of fact made with respect to the second cause of action nor do we indicate any opinion as to the proper disposition of such applications as may be made to the court below. (4) Order settled. (5) Motion by respondent for a stay granted to the extent that appellant be stayed from taking any proceedings under any order or judgment entered upon the decision of July 24, 1957, as hereby amended, or to enforce any rights under its tax deed, for a period of 60 days after service upon respondent’s attorneys of a copy of such order or judgment with notice of entry and, in the event respondent shall appeal therefrom to the Court of Appeals and thereupon shall promptly apply to said court for a stay of proceedings, the stay hereby granted shall continue pending the determination of such application. Present—Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ. [See ante, p. 334.]