Opinion
December, 1933.
Appeal from Supreme Court, New York County.
Present — Finch, P.J., Merrell, Martin, O'Malley and Townley, JJ.; Finch, P.J., and Merrell, J., dissent and vote for affirmance.
Order reversed, with twenty dollars costs and disbursements, and motion granted in so far as to direct that defendant be required to pay the amount due as fixed by the stipulation within ten days after service of order. Otherwise, order affirmed. (See Van Nuys v. Titsworth, 57 Hun, 5, and Humphries v. Shapiro, 187 App. Div. 96.) Settle order on notice.
In my opinion, the learned justice at Special Term was right when he denied the motion to vacate a judgment entered upon an agreement of settlement made advisedly in order to make the best terms possible with the plaintiffs, and without claim of fraud. The old cause of action was terminated; a new liability was substituted. "When a compromise results in the termination of an action and the execution of a new agreement giving effect to the settlement, it cannot be undone in the discretion of the court on motion in the action." ( Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435, 446.) I, therefore, dissent and vote for affirmance. Merrell, J., concurs.