Opinion
January 14, 1971
Appeal from the Onondaga Special Term.
Present — Del Vecchio, J.P., Marsh, Witmer and Henry, JJ.
Order unanimously affirmed, without costs, and matter remitted to Justice O'DONNELL for a hearing in accordance with the following Memorandum: On this appeal defendants ask for reversal of Justice MEAD'S order insofar as it directs that the receiver pay the moneys remaining in his hands to the Commissioner of Finance of Onondaga County, and that in lieu of such provision the order be amended to provide that the receiver pay such moneys to the estate of Benjamin Bloom in accordance with the terms of the stipulation of settlement referred to in the order. It appears from the briefs and the argument of the appeal that the parties are in disagreement in some respects as to what, precisely, were the terms of the stipulation of settlement. Since the actions which are the subject of the stipulation have not yet been discontinued, the court retains jurisdiction of them ( Allard v. Allard, 27 A.D.2d 776). In view of the disagreement, the parties are remitted to Justice O'DONNELL before whom the stipulation was made, for a hearing to determine whether it is complete and enforceable (see Kirkeby-Natus Corp. v. Gevinson, 33 A.D.2d 883) and, if it is found not to be complete and enforceable, to take such other action as justice requires to determine the rights of the parties. In the meantime, it is only proper that the moneys in the hands of the receiver continue to be held for the benefit of the parties to the actions, pending final determination of the correctness and validity of the stipulation and the rights of the parties. Accordingly, the order of Justice MEAD, from which this appeal is taken, is affirmed, and the parties are remitted to Justice O'DONNELL for a hearing concerning the correctness and validity of the stipulation of settlement and for such other action in these cases as justice requires to determine the rights of the parties.