Opinion
Argued October 20, 1978
Decided November 28, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, MAX BLOOM, J.
Steven G. Eckhaus, Milton M. Rosenberg and Arthur M. Unterman for appellant.
Mario Merola, District Attorney (Edward G. Spell and Steven R. Kartagener of counsel), for respondent.
Order affirmed on the opinion by Mr. Justice SAMUEL J. SILVERMAN at the Appellate Division ( 58 A.D.2d 147), except to note that the averments in the attorney's affidavit are more properly admissible under the rule governing "informal judicial admissions" described in section 217 of Richardson on Evidence (10th ed) rather than the rule governing "formal judicial admissions" described by Richardson in section 216 of his treatise. Informal judicial admissions, as distinguished from formal judicial admissions, are not conclusive on the defendant in the litigation.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.