Opinion
December 17, 1962
In an action to compel reinstatement of the plaintiffs as employees, officers and directors of the defendant corporation, and for other relief, the said corporation and the individual defendants appeal from an order of the Supreme Court, Nassau County, entered September 27, 1962, which denied their motion to vacate an agreement of settlement and discontinuance of the action entered into by the parties during its pendency. Order affirmed, with $10 costs and disbursements, and without prejudice to the commencement of any new plenary action for appropriate relief, if defendants be so advised. The motion was denied at Special Term on the grounds that no fraud had been practiced by the plaintiffs; and that, in any event, the fraud, if any, was collateral to the matters which were involved in the settlement. In our opinion, since there was no judicial action upon the settlement agreement, defendants' claim of fraud upon the court is untenable; the parties settled their differences by an agreement of their own. In any event, the action in which the present motion was made is no longer a pending action, having been discontinued. Under such circumstances, defendants' remedy, if any, is by plenary suit, and not by a motion made in the discontinued action (see Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435). Beldock, P.J., Kleinfeld, Christ, Rabin and Hopkins, JJ., concur.