Defendant appeals from an order of Special Term which confirms the report of an Official Referee and restores the case to the calendar. The action is in negligence and arises out of an accident that occurred in February, 1955. When the ease was assigned for trial, plaintiff’s counsel appeared in court without the plaintiff and without any witnesses. He offered to discontinue the action with prejudice, and an order to that effect was entered. It appears that counsel took the step advisedly, believing plaintiff to have no cause of action. It is now claimed that he was merely trial counsel and lacked authority to take this step. The description “ trial counsel ” is a misnomer. This attorney had full charge of the case from its inception, drawing the pleadings, conducting all pretrial steps and advising and consulting with plaintiff. There was no restriction on his management of the case with the exception that his subordinates, as distinct from himself, were not to consent to a settlement without consulting the attorney of record. It further appears that the client’s absence was either deliberate or the result of a mistake but, if the latter, no claim to that effect was made, nor any request for an adjournment.
As for the claim of lack of authority, it is not supported. The counsel who appeared for plaintiff had all the authority that an attorney of record would have, as that in reality was his relationship. Furthermore, he was in a position where his alternatives were dismissal or discontinuance. The fact that he selected the latter should not give plaintiff any greater rights than if he selected the former. Defendant could neither refuse the discontinuance nor object to it. No question is involved of the plaintiff being prejudiced by an unauthorized act of his counsel. He would have been in no better position had counsel proceeded to certain defeat. Had this happened, any claim that he might have had would have been lost and his remedy, if any, would be solely against his counsel for failure to represent Mm properly. Under such circumstances, the claim of lack of authority has no substance.
Lastly, as might be anticipated in a situation of this sort, the affidavit of merits leaves much to be desired.
The order should be reversed and the case stricken from the calendar.
Breitel, J. P., Rabin and Valente, JJ., concur in Memorandum; Steuer, J., dissents in opinion, in which Eager, J., concurs.
Order, entered on May 1, 1962, granting plaintiff’s motion to restore the case to the Ready Day Calendar affirmed, without costs.