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Deep South Oil Company of Texas v. Epstein

Appellate Division of the Supreme Court of New York, First Department
Jan 14, 1960
10 A.D.2d 551 (N.Y. App. Div. 1960)

Opinion

January 14, 1960


Order appealed from unanimously reversed, on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, and the motion denied, with $10 costs. Defendant-appellant had brought two prior actions, one in the City Court against plaintiff-respondent, a Texas corporation, and the other in the Supreme Court against a related Delaware corporation. Stipulations were entered into in both actions in which liability was admitted, payments agreed upon and entry of judgment consented to in the event of default. Plaintiff-respondent then brought this plenary action to vacate said stipulation and for incidental relief, and moved to enjoin defendant from entering judgment in the prior actions and for permission to file answers in said actions nunc pro tunc. Defendant appeals from the order granting said motion, conditioned on the filing of a bond. There was clearly no warrant for according such relief to the Delaware corporation, which is not even a party to this action. The granting of leave to file answers nunc pro tunc in the other actions virtually vacates the stipulation of settlement and affords plaintiff at this preliminary stage substantially all the relief sought in the plenary action. The moving papers, moreover, fail to make a sufficiently clear showing that the two successive stipulations of settlement, both comprehensive, prepared by lawyers, and over a month apart in point of time, were both induced by fraudulent misrepresentation and coercion so as to demonstrate a right to the relief of temporary injunction ( Park Terrace Caterers v. McDonough, 9 A.D.2d 113; Barricini, Inc. v. Barricini Shoes, 1 A.D.2d 905).

Concur — Botein, P.J., Breitel, Rabin, M.M. Frank and Valente, JJ.


Summaries of

Deep South Oil Company of Texas v. Epstein

Appellate Division of the Supreme Court of New York, First Department
Jan 14, 1960
10 A.D.2d 551 (N.Y. App. Div. 1960)
Case details for

Deep South Oil Company of Texas v. Epstein

Case Details

Full title:DEEP SOUTH OIL COMPANY OF TEXAS, Respondent, v. STANLEY EPSTEIN, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 14, 1960

Citations

10 A.D.2d 551 (N.Y. App. Div. 1960)

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