Opinion
February 16, 1971
In an action to set aside a conveyance of real property, defendant appeals from an order of the Supreme Court, Suffolk County, dated June 19, 1970, which denied defendant's motion to be relieved of the terms of a stipulation and conditionally granted plaintiffs' cross motion for the appointment of a Referee. Plaintiff Anna Kleever died on June 3, 1970, after service of defendant's motion papers but before service of the cross motion (see CPLR 1015). A stipulation substituting the executor of her estate in her place as a plaintiff in this action was submitted to this court after the argument of the appeal. Such substitution is hereby ordered. Order dated June 19, 1970 reversed, without costs; defendant's motion granted and plaintiffs' cross motion denied. Our examination of the record of the stipulation conference discloses that a valid stipulation was never entered because of a lack of consent thereto by the defendant, Alice Harrell. Accordingly, defendant is not bound by the rigors of the stipulation. Martuscello, Acting P.J., Latham, Christ, Brennan and Benjamin, JJ., concur.