I concur in the opinion of Mr. Justice Spring that the order - appealed from should be reversed.
Subject to the protection of the rights of plaintiff’s attorneys, the defendant had an absolute, unqualified right to effect a settlement and'discontinuance of the action in question, When this was done . and a stipulation of discontinuance -taken, the'action was, subject to the rights of said attorneys, discontinued and ended, and there was no action left in which it was necessary or proper to set up-by supplemental pleading the stipulation of discontinuance. If defendant had done something which merely amounted to a payment or settle-merit without á formal stipulation ending the action, it would have been different. If the stipulation had been signed by the attorneys . for the plaintiff the defendant would have been entitled to file' it' and have a formal order of discontinuance without further notice or, proceedings. As long as the stipulation was not signed by the attorneys it was-very likely necessary for the defendant to procure such formal order upon notice to the attorneys in order that their rights might be protected.
While defendant’s attorneys have- probably blundered in their practice upon this stipulation in attempting to. use it as evidence upon a trial rather'than in obtaining an order upon it, I still think that they should not be deprived of a stipulation and settlement *597which, subject only to the rights already mentioned, they had a perfect right to make and obtain. I do not see in the course taken by them, while probably incorrect as a matter of practice, any such evidence of laches or wrongdoing as should deprive them of a lawful step and proceeding in a case.- The stipulation of settlement was certainly made public enough upon the trial of the action, and nobody there seems to have suggested what we think was the proper course for defendant to have pursued in making a formal application for an order upon its stipulation. Finally and after more deliberation the motion resulting in the order appealed from was made which did present the question in a proper manner and gave plaintifl’s attorneys an opportunity to be heard in protection of their rights and of those of their client, and when it was urged by them that the stipulation was procured by fraud and misrepresentation I think the court, either by a reference or by leave to file additional affidavits, should have given defendant the right to meet these allegations. '
Judgment and order denying motion for new trial on the minutes affirmed, with costs, unless the defendant elects to serve a supplemental answer and have a new trial upon the conditions specified in the opinion of Mr. Justice Williams herein, in which event the judgment and order are vacated and set aside and a; new trial granted upon the compliance with such conditions.