
    Cosmo Tino, Plaintiff, and Vincenza Boggia, as Administratrix of the Estate of Maria Boggia, Deceased, Respondent, v. Patrick R. Flynn et al., Respondents-Appellants, and Frank Vagnone et al., Appellants-Respondents.
   Orders entered on December 6, 1960, insofar as they denied the motions by defendants to strike the case from the calendar are unanimously reversed, without costs, and the motions granted to the extent of striking the case from the calendar, and plaintiffs’ cross motion to restore granted to the extent of remanding the motion to Trial Term, Part I, of Bronx County, for a hearing on the facts and circumstances surrounding the settlement stipulation with particular reference to the question of whether the settlement was agreed upon without any authority from the plaintiffs. A settlement agreed upon in open court and recorded in the court’s minutes should not be set aside upon the basis of the present state of the record. The affidavits do not satisfactorily show that the attorney was not authorized to make the settlement when the stipulation was agreed upon, particularly in the absence of an affidavit of the client to that effect. A change of heart by the client — if that were the case-— would not negative a prior authorization. Only after all of the facts are explored at a hearing can it be determined whether the litigation was settled without the client’s consent and authorization. The ex parte restoration of the ease to the calendar, without formal motion or notice to the defendants, was improper, and defendants were entitled to have the case stricken from the calendar. Restoration must await the disposition of plaintiffs’ cross motion after the hearing directed hereinabove. Settle order on notice. Concur — Botein, P. J., Rabin, Valente, Stevens and Eager, JJ.  