
    Jean Albert Tauziede et al., Resp’ts, v. Francois Henry Jumel et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 6, 1893.)
    
    Stipulations.
    Prances Ai Gesner, the only party who appeals in this case, was a party to Chester v. Jumel, and also to this case. The appeals from the judgments in both cases were progressing side by side from the special to the general term, when a motion was made to dismiss the appeal in this case, and the court made an order that unless appellant Gesner stipulated within ten days that she would abide the event of the appeal in the Chester case, the appeal in this case should be dismissed. She gave the stipulation. The judgment in the Chester case was modified so as to be more favorable to Mrs. Gesner, and judgment accordingly entered by plaintiffs, but on appeal to this court the modification was reversed and the original judgment affirmed. A motion by respondents for reargument of the appeal in the general term was granted, and, upon the hearing, the special term judgment was affirmed, and Mrs. Gesner lost the benefit of the modification. 
      Held, that the violation of the stipulation was not a ground for reversal of the judgment. At the best, it was but a stipulation in an action that the parties would abide the result of a future decision in another case, which, when made, was thought to he in some respects erroneous, and the court had the power, in the exercise of a sound discretion, to modify or vacate the stipulation, and upon a hearing’of the appeal to apply the law as finally determined in the other case.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon decision of the court in an action to fix the rights of the parties in respect to certain property held by a trustee.
    
      David Thornton, for app’lts; Edward Winslow Paige, for resp’ts.
    
      
       Affirming 39 St. Rep., 336.
    
   O’Brien, J.

Thereafter, a motion was made to the general term by the respondents in the appeal from the judgment in this case for a reargument of the appeal in that court. This motion was opposed, but granted, and upon the hearing the judgment of the special term was affirmed, and in this way Mrs. Gresner lost the benefit of the modification by the general term in the Chester case, which she claims was secured to her by the stipulation, notwithstanding the reversal of that modification in this court. The violation of the stipulation is now urged by her counsel as ground of reversal of the judgment appealed from.

There are, we think, two answers to this contention:

1. The order of the general term which allowed the respondents to bring the case to argument, notwithstanding the stipulation, has not been appealed from. It was in making that order that the alleged error was committed, if at all. It does not enter into the judgment and cannot be reviewed on appeal from it. That order, in effect, relieved the respondents from the stipulation and vacated it, and cleared the way for the application to the case of the decision of this court in the Chester case. It put the case before the court for a hearing in the same way as if the stipulation had not been made, and if that order violated any legal right or, without power, revived an appeal which, as matter of law, had been terminated by the act of the parties themselves, it was reviewable.

2. The appeal from the judgment of the trial court gave the general term jurisdiction which was not lost by the stipulation. That simply provided that the appeal then pending should be decided in the same way as the appeal in the Chester case. But the court did not lose control of the case. Assuming that this stipulation was to abide the decision of the general term in the Chester case, and that it was not intended to apply to the ultimate decision of the appeal in this court, it was within the power of the general term, after this court had passed upon the questions in the Chester case, to relieve the parties, or any of them, from the stipulation and order the case to be argued, and then apply the principle of distribution decided by this court to be the correct one. At best it was but a stipulation in an action that the parties would abide the result of a future decision in another case which, when made, was thought to be in some respects erroneous. The court had the power then, in the exercise of a sound discretion, to modify or vacate the stipulation, and upon a hearing of' the appeal to apply the law as finally determined in the other case. That, in effect, was what was done in the case at bar, and as it touched no legal rights which the party had, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  