
    Mariana Merida, Individually and as Administratrix of the Estate of Adolph Merida, Absentee, Appellant, v. 200 West 96th Street, Inc., Respondent.
    Argued February 15, 1967;
    decided March 2, 1967.
    
      
      Jacob Bromberg and Samuel Block for appellant.
    I. The settlement entered into the court record was final, irrevocable and terminated the litigation. (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Bond v. Bond, 260 App. Div. 781.) II. The settlement agreed upon immediately changed plaintiff’s unliquidated tort action into a liquidated claim and was not a contract to settle in the future. (Langlois v. Langlois, 5 A D 2d 75.) III. The form of the release instrument required to extinguish defendant’s obligation is not a condition of the settlement. (Twin Realty Corp. v. Glens Falls Portland Cement Co., 225 App. Div. 515; General Payment Co. v. Elliott, 7 A D 2d 919; Kawata v. Barry, 237 App. Div. 608; Union of Soviet Socialist Republics v. National City Bank of N. Y., 257 App. Div. 302.) IV. Whether alive or dead, plaintiff’s cause of action for injury to his person was settled by the stipulation entered in the court record. (Single v. Whitmore, 307 N. Y. 575; Pascoe v. Electromatic Mfg. Corp., 3 A D 2d 818; Lucio v. Curran, 2 N Y 2d 157; Baka v. Board of Educ. of City of N. Y., 11 Misc 2d 414, 8 A D 2d 613.)
    
      Lewis I. Wolf and Emanuel Morgenbesser for .respondent.
    I. Respondent will move this court at the argument of the appeal herein to have the appeal herein dismissed upon the ground that there was no final judgment within the meaning of the Constitution of the State of New York which is appealable to the Court of Appeals as to permit the review of an intermediate order and upon the ground that the judgment was the result of a non-reviewable exercise of discretion by the Supreme Court and thus does not have the finality necessary to bring a case of right to the Court of Appeals even to review an intermediate order. (Commercial Credit Corp. v. Lafayette Lincoln-Mercury, 17 N Y 2d 367; Mintzer v. Loeb, Rhoades & Co., 10 A D 2d 27, 10 A D 2d 911; Bliss v. Omnibus Corp., 169 Misc. 662; Bermann v. Esposito, 35 Misc 2d 59; Platt v. Tenenbaum, 16 N Y 2d 614; Dean Constr. Co. v. Agricultural Ins. Co., 16 N Y 2d 989; Huzinek v. East Side Omnibus Corp., 294 N. Y. 661; Langlois v. Langlois, 5 A D 2d 75; Colombik v. Heinrich, 11 A D 2d 1026; Nietzel v. Port of N. Y. Auth., 15 N Y 2d 552; Steinberg v. Altschuler, 15 N Y 2d 620; Riccobono v. Italian Line, 15 N Y 2d 676; Keller v. United States Lines, 15 N Y 2d 908.) II. Inasmuch as the action was settled by stipulation on condition that a general release be executed by Merida “ individually and not by any attorney in fact or other legal representative ” and that the stipulation of discontinuance be signed by Merida personally, and plaintiff administratrix of Merida as absentee sought to herself sign the release and stipulation of discontinuance and therefore did not comply with the stipulation of settlement, therefore the order of the Appellate Division dated July 6, 1964 was properly made and the administratrix’ motion for the entry of judgment was properly denied. (Bishopp v. Cookinham, 17 Misc 2d 885; Twin Realty Corp. v. Glens Falls Portland Cement Co., 225 App. Div. 515; General Payment Co. v. Elliott, 7 A D 2d 919; Kawata v. Barry, 237 App. Div. 608.) III. Inasmuch as a stipulation of settlement constitutes a contract, it should be able to be enforced only by plenary action and, if the same cannot be enforced in accordance with its terms, the remedy is to set the same aside and to restore the action to the calendar upon proper and timely application being made therefor. (Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Evans v. 2168 Broadway Corp., 281 N. Y. 34; Cochran v. Taylor, 273 N. Y. 172; Goldbard v. Empire State Mut. Life Ins. Co., 5 A D 2d 230; Matter of Sakel, .31 Misc 2d 791; Oliver v. Wells, 229 App. Div. 356; Brunner-Booth 
      
      Fotochrome Corp. v. Kaufman, 18 A D 2d 160; Langlois v. Langlois, 5 A D 2d 75; Bruder v. Schwartz, 260 App. Div. 1048; Bond v. Bond, 260 App. Div; 781.) IV. Plaintiff in Ms present appeal argues that the only error of the Appellate Division in the two determinations by the Appellate Division was in vacating the judgment upon the stipulation of settlement; plaintiff does not argue that the dismissal was improper; and, since plaintiff-appellant apparently concedes that dismissal would be proper if the stipulation cannot be converted into a judgment, respondent will not discuss the propriety of the dismissal herein.
   Van Voorhis, J.

This is a negligence action arising from a fall on a sidewalk, commenced more than 18 years ago. It has never been tried. It was at issue and noticed at the February, 1950 Trial Term in New York County. In 1952, a contingent agreement of settlement was made, whereby defendant agreed to pay $3,250 ‘ ‘ on condition that the general release in this case shall be executed by the Plaintiff individually and not by any attorney in fact or other legal representative A stipulation was entered on the record embodying this condition, and the court indicated that the plaintiff’s attorney could either accept the settlement or proceed to trial “ in wMch event, because of his inability to locate the Plaintiff, it would necessitate a dismissal of the complaint by the Court.” Eleven years later plaintiff’s wife was appointed administratrix on August 2, 1963, on an affidavit that plaintiff was last seen alive on September 20,1950. She obtained an Enoch Arden divorce March 26, 1958. Having been substituted for the plaintiff as administratrix, she applied on November 1,1965 to restore the action to the calendar by way of a cross motion to a motion by defendant to dismiss the action. Meanwhile plaintiff administratrix had moved for judgment on the settlement agreement, which was denied on the ground that it was conditional and that the condition had not been and could not be fulfilled (21 A D 2d 759, app. dsmd. 15 N Y 2d 1032). That ruling was correct.

We consider that the action was incorrectly marked dismissed ” under rule 302 of the former Buies of Civil Practice, for the reason that it was removed from the calendar on account of the agreement of settlement wMch proved to be ineffectual. For the same reason, the Appellate Division was incorrect in dismissing the complaint “ on the law ”, by the order appealed from, on account of there being no affidavit of merits on the application to restore the action to the calendar. It is open to the Appellate Division, however, to dismiss upon the facts (in the exercise of discretion) on account of the delay of the administratrix in applying to have the action restored to the calendar after learning the facts which rendered the settlement agreement ineffectual (Thomas v. Melbert Foods, 19 N Y 2d 216, decided herewith; Commercial Credit Corp. v. Lafayette Lincoln-Mercury, 17 N Y 2d 367). Accordingly the order appealed from should be modified by remanding the matter to the Appellate Division to decide on the facts, in the exercise of discretion, whether the action should be dismissed for delay in failing to prosecute.

Chief Judge Fuld and Judges Burke, Soileppi, Berg ax and Iveatixg concur; Judge Breitel taking no part.

Order modified, without costs, and matter remitted to the Appellate Division for further proceedings in accordance with the opinion herein.  