Papajohn v. Michael 17 A.D.2d 803

Order, entered June 7, 1961, enforcing the stipulation of settlement purportedly made in open court, unanimously reversed, on the law and the facts, and in the exercise of discretion, and said order vacated, with $10 costs and disbursements to the appellant. Order, entered February 16, 1962, denying appellant’s motion to vacate such stipulation unanimously reversed, on the law and the facts, and in the exercise of discretion, and said motion granted, without prejudice to such plenary action as respondents may be advised to bring based on any agreement of settlement otherwise made, with $10 costs and disbursements to appellant. The purported settlement which appellant moved to vacate was made in open court during the pendency of the litigation. In such circumstances it may be set aside on motion in a proper ease (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435, 445), and should be set aside in the present case, and the order enforcing it should be vacated, since it is evident from appellant’s testimony that she was dissatisfied with the settlement and did not express agreement in open court with its terms. If respondents believe that the parties made a binding settlement agreement dehors the court proceedings which appellant breached, a plenary action is their remedy. Concur — Botein, P. J., Breitel, Yalente, McNally and Eager, JJ.