(dissenting). The Special Term has directed judgment on motion, predicating its action upon an oral agreement of settlement alleged to have been made out of court between the plaintiff’s attorney and the representative of a mutual insurance corporation which insured the defendant corporation, one of its members, against liability for claims based upon negligence. The defendant refused to carry out the settlement for the assigned reasons that the person claiming to act on its behalf was not authorized so to do, and also upon the ground that the settlement was induced by a misrepresentation of fact. It may well be that in a plenary action upon the agreement of settlement both these claims may be resolved against the defendant; but that question is not before us. I think the court has no power upon motion to determine either of these questions or to order a judgment upon the basis of a disputed oral agreement claimed to have been made out of court.
I, therefore, dissent from the affirmance of the judgment and order.
Finch, J., concurs.
Judgment and order affirmed, with costs.