Tepper v. Tannenbaum

Order of the Supreme Court, New York County (Leonard N. Cohen, J.), entered April 3, 1981, which, sua sponte, held a stipulation entered into between the parties to be not binding upon the court, reversed, without costs, on the law, the facts and in the exercise of discretion, and the matter remanded to Cohen, J., for further proceedings in accordance with the stipulation. This action to recover a share of the profits resulting from certain building maintenance contracts was first tried in 1976 and resulted in a judgment in favor of defendants (Tepper v Tannenbaum, 87 Misc 2d 829). We reversed (65 AD2d 359) and remanded for a new trial, holding that the trial court, in excluding from evidence a tape recording and the transcript thereof, as well as testimony establishing the authenticity of the recording and the identification of the voices, had given the “dead man’s statute” (CPLR 4519) too limited an interpretation. On April 25,1980 the parties stipulated to retry the case on the record and the exhibits introduced at the prior trial including “the tape recording and transcript thereof which was the subject .of the decision and opinion of the Appellate Division”. The stipulation further provided that “[i]n the event that the Court, upon retrial, finds the evidence legally insufficient on the issues of authenticity, and the identity of the speakers on the tape recording, plaintiff shall be entitled to have a trial on this limited issue prior to the decision of this matter”. On April 28, 1980 the Trial Justice to whom the matter was assigned “so ordered” the stipulation and the matter was submitted to him. After holding the matter for approximately 11 months, the Trial Justice notified the parties that in the absence of “live testimony” he was unable to determine the issues of fact presented. Accordingly, he vacated the stipulation and, on April 3, 1981, almost a year after the matter had been submitted to him, entered an order determining that the stipulation was not binding upon him and remanded the matter to the Conference and Calendar Part “for a complete new trial”. “Parties by their stipulations may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. * * * and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced” (Matter of New York, Lackawanna & Western R.R. Co., 98 NY 447, 453; see, also, Morse v Morse Dry Dock & Repair Co., 249 App Div 764; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2104.02). The stipulation in this case is not an unreasonable one. Nothing contained therein contravenes good morals or sound public policy. The trial court “so ordered” the stipulation, thereby indicating his willingness to be bound thereby. It held the action for almost a year. In the interim the list of witnesses was diminished by death, making necessary the reading of their testimony, at least, at any subsequent “live trial”. In these circumstances we are of the opinion that it was an abuse of discretion to set the stipulation aside. Concur — Birns, J. P., Ross, Markewich and Bloom, JJ.