Witschger v. Kamages

1054 It is our opinion, upon this record, that the judgment upon appeal correctly declares the intent of the parties as expressed in the instrument and fixes their tax liability thereunder. (Cohen v. Bass, Inc., 246 N. Y. 270, 277; People ex rel. Int. Navigation Co. v. Barker, 153 N. Y. 98, 100; People ex rel. Hudson Riv. Day Line v. Franck, 257 N. Y. 69, 71; Spoor-Lasher Co. v. Newburgh Gas & Oil Co., 280 N. Y. S. 585, affd. 245 App. Div. 329, affd. 269 N. Y. 447, 449.) We find no merit in appellant’s contention that the trial court was powerless to find additional facts than those stated in the stipulation of facts offered and received upon the trial. This was not a submission of controversy upon agreed facts, pursuant to section 546 of the Civil Practice Act, but the trial of an action at issue at which the statement was offered and received in lieu of testimony. (See Nott v. Klein, 159 Misc. 35.) We do not in this action for declaratory judgment pass upon the propriety of the provisions of the judgment directing certain payments by appellant, appearing in subdivisions 2 and 4 of the second decretal paragraph of the judgment on appeal, for the reason that appellant has made no contention in respect thereto. Present — Nolan, P. J., Johnston, Adel, Sneed and Wenzel, JJ. [See 276 App. Div. 784.]