Opinion
June 24, 1968
Appeal from the Erie Trial Term.
Present — Bastow, P.J., Goldman, Marsh, Witmer and Henry, JJ.
Judgment unanimously affirmed, with costs. Memorandum: The first cause of action in the complaint sought to recover a stated amount claimed to be due plaintiff on the contract made on April 7, 1959 between the parties. The second cause of action in the pleading sought to recover a stated amount for "additional work, labor and services; and furnished materials consisting of the fabrication and furnishing of pipe supports" by plaintiff. Upon a prior appeal ( 27 A.D.2d 114) we directed summary judgment on both causes of action and remanded solely for an assessment of damages thereon. The gratuitous act of the parties in subsequently stipulating that there should be a nonjury trial as to whether plaintiff suffered damages under the second cause of action for which it had not been compensated under the first cause of action injected into the litigation a new issue. Moreover, it was an overt attempt to modify by stipulation our order entered January 12, 1967. Orderly procedure dictated that such relief should have been obtained (if the parties so agreed) by appropriate motion in our court for reargument and, if granted, a modification of the prior order of this court.