Mencher v. Birnbaum

Order unanimously reversed and the matter remitted to Special Term. The record on this appeal does not comply with the requirements of rule 234 of the Rules of Civil Practice. The record is also insufficient to disclose the facts as to whether or not the provision in the stipulation for the entry of judgment in the amount of $32,100 was a penalty provision. The collateral agreement referred to in the brief was not marked in evidence but as printed in the record appears to contain a reservation of rights against the defendants. For all these reasons the order appealed from should be reversed and the matter remitted to Special Term for the taking of further evidence, if necessary, and for the making of a proper record. In view of the condition of the record, appellant is not entitled to costs. Concur — Peck, P. J., Breitel, Botein, Rabin and Valente, JJ. [See ante, p. 870.]