Opinion
April 5, 1944.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, WHALEN, J.
Emanuel Mehl for appellants.
Joseph S. Scheinberg for respondent.
MEMORANDUM
Rule 4 of the Rules of Civil Practice states an ancient rule designed to prevent fraudulent claims of oral stipulations. But where an oral stipulation is clearly shown and it is established that the parties have acted upon it, a defeated party will not be permitted to retract and take advantage of the omission of his adversary to require that the agreement be reduced to writing. Here the defendants, through counsel, not only made the oral agreement to extend the time for final submission but the defendants actually filed their brief on the last day agreed upon. Under the facts shown the decision of the Trial Justice was timely made. ( People v. Stephens et al., 52 N.Y. 306; Zwecker v. Levine, 135 A.D. 432.) On the merits the decision in favor of plaintiff was warranted on the evidence.
Judgment affirmed, with twenty-five dollars costs.
Concur: HAMMER and McLAUGHLIN, JJ.
I dissent and vote to reverse and to place case on the general calendar (N.Y. City Mun. Ct. Code, § 119; L. 1915, ch. 279, as amd.).