Rothkrug v. Rothkrug

Order relieving defendant from stipulation and agreement as to alimony and counsel fee made in pen ding litigation, and vacating former order based upon such stipulation, affirmed, with ten dollars costs and disbursements. We think the agreement in question wsis a stipulation entered into by the parties in the progress of the divorce action to avoid the necessity of arguing the pending motion for alimony and counsel fee, and. that it was clearly within the power of the *887Special Term to relieve the defendant from the stipulation, and to vacate the order made thereon, upon proper cause shown, the plaintiff being restored to his position before the stipulation was entered into. The facts disclosed in the affidavits justified the learned justice, who had the additional advantage of having the parties before him at the time the stipulation was signed, in finding that if was entered into without knowledge on the part of the defendant of its somewhat extraordinary provisions. The action should be promptly tried and decided upon the merits. Kelly, P. J., Rich, Jaycox, Kelby and Young, JJ., concur.