
    Equitable Trust Company of New York, Appellant, v. Ralph MacLaire, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1912.)
    Stipulations — requisites and validity of agreement — construction and effect — limit of right to appeal — enforcement of.
    The Municipal Court of the city of New York has no power to set aside a stipulation between the parties to an action therein to settle the controversy in suit.
    An order setting aside such a stipulation is not appealable and may be reversed only where the judgment to which it is merely incidental is reversed on appeal.
    Where the stipulation provided for the payment of an agreed-sum in monthly installments and that until full payment thereof the action should be marked “ Reserved generally,” there is not such an acknowledgment of the debt as to remove the bar of the Statute of Limitations.
    It was improper for the court upon being shown the stipulation to force the action to trial.
    Where defendant in an affidavit states that before the settlement was made his attorney advised him that lie would try to arrange a settlement, and defendant at no time attempted to evade the force of the settlement by any distinct claim that he had not authorized it, he cannot in disregard of the terms of the stipulation force the action to trial.
    Appeal by plaintiff from a judgment in favor of defendant, entered in the Municipal Court of the city óf ¡New York, borough of Manhattan, first district, dismissing the complaint at the close of plaintiff’s case, after a trial by a judge with a jury, plaintiff bringing up for review an order entered April 15, 1912, on defendant’s motion vacating a “ stipulation ” of settlement alleged to have been made between the parties and dated March 12, 1912.
    McLear & McLear (Herbert Gr. McLear, of counsel), for appellant.
    Llenry H. McCorkle, for respondent.
   Lehmatt, J.

The parties hereto, acting through their attorneys, entered into a formal contract denominated a stipulation ” to settle the controversy. The defendant moved to vacate and set aside this stipulation, upon the grounds “ that said stipulation was signed thoughtlessly, improvidently, imprudently, without knowledge of the true facts of the plaintiff’s claim, under a wrong impression given by plaintiff’s attorneys in the summons and demand for judgment and misleading statements made by plaintiff’s attorneys.” The motion was granted, and an order was entered, vacating the stipulation, and giving the defendant leave to defend the action. At the trial, the plaintiff objected to further proceedings, and asked that the er.so be marked “ Reserved generally ” pending the payments xinder the stipulation. The trial justice refused to disregard the order made by the justice who had decided the previous motion, and proceeded with the trial. The defense to the cause of action was the Statute of Limitations. The plaintiff urged that the contract of settlement was a sufficient acknowledgment of the debt to take the case out of the statute, but the trial justice overruled this contention and gave judgment for the defendant. The plaintiff appeals from the judgment, and brings up for review on this appeal the prior order vacating the stipulation.

We are all agreed that there is no power in the Municipal Court to vacate the stipulation. It was a formal agreement to settle the controversy, and not a mere arrangement between counsel made during the trial of a case. It could not be set aside except as the result of an action brought on approved grounds in a court of equitable jurisdiction. Nevertheless, I do not think that we have any power to set aside this order, except upon a reversal of the judgment. The order itself is not appealable, and may be reversed only by appeal from a judgment. Our powers on such appeal arc purely statutory, and are confined to the reversing, affirming or modifying a judgment. If the order brought up for review on the appeal from the judgment affects the correctness of that judgment in whole or in part, then, upon a reversal or modification of the judgment, we have a right to vacate an order upon which the erroneous judgment relies, but I know of no precedent or authority for affirming the judgment and vacating an incidental order brought up for review.

No rulings of the trial justice at the actual trial present any grounds for reversal. I agree with the view that the agreement of settlement was not such an acknowledgment of the debt as to remove the bar of the Statute of Limitations. See Connecticut Trust & S. D. Co. v. Wead, 58 App. Div. 493. Nevertheless, I think that the judgment should be reversed. The agreement of settlement provided for the payment of an agreed sum in monthly instalments, and that, until the full amount was paid, the action should be marked “ Reserved generally.” When that agreement was shown, it was improper for the court to disregard its terms and to force to trial an action already settled. The defendant was absolutely bound by its terms if he authorized his attorney to settle the action, and he states in his own affidavit that, before the settlement was made, his attorney advised him that he would try to arrange a settlement. At no time has he attempted to evade the force of the settlement by any distinct claim that it was unauthorized by him. Under such circumstances, it cannot well be held that the agreement was made without his authority. He cannot, therefore, in disregard of its terms, force the action to trial.

Judgment should be' reversed without costs and a new trial ordered without prejudice to plaintiff’s right to move to have the case marked Reserved generally.”

'Seaburt and Bijur, JJ., concur.

Judgment reversed.  