
    Alexander Cook, Appellant, v. Pasquale Bianco, Respondent.
   Order modified by granting plaintiff’s motion to restore the case to the calendar for trial, and as so modified affirmed. The agreement, dated May 5, 1927, makes no mention of the settlement or discontinuance of the action. Any oral agreement to settle the action is not binding unless made between counsel in open court (Rules Civ. Prac. rule 4), and the record before us is not sufficient to show that this was done. This decision is without prejudice to defendant, if so advised, to move to amend his answer by alleging, as a defense, the agreement of settlement claimed. Lazansky, P. J., Rich, Young, Kapper and Seeger, JJ., concur.  