Opinion
December 8, 1960
Appeal from the Monroe Special Term.
Present — Williams, P.J., Bastow, Halpern and McClusky, JJ.
Order denying motion to punish for contempt unanimously affirmed, without costs of this appeal to any party. Order resettling judgment, insofar as appealed from, unanimously reversed in the exercise of discretion, without costs, and action remitted to Special Term for further proceedings in accordance with memorandum. Memorandum: This action was purportedly settled during trial. The stipulation placed upon the record attempted to establish a boundary line between the properties of the respective parties. The stipulation, however, was ambiguous, confused and ineffective to accomplish the purpose of settling the dispute between the parties. Subsequently plaintiff sought to resettle the judgment entered upon the stipulation. Plaintiffs appeal from the resettled judgment and the order directing such resettlement. In our opinion, the motion should have been referred to the Justice who presided at the trial when the stipulation was made. Upon the present record, it well may be that upon such referral the Trial Justice may not be able to resettle the judgment with an intelligent result in view of the ambiguous stipulation. In such event consideration should be given as to whether the original judgment should be vacated and the trial proceed de novo. Upon the present record we are unable to pass upon this question. The order denying the application to punish for contempt should be affirmed.