I dissent in part and vote to modify and remand the cause to the Surrogate for a hearing. The Surrogate held the parties did not intend that the delivery of an assignment of a claim in bankruptcy based upon the notes of an adjudicated bankrupt would satisfy the agreement nor was it intended that $25,000 in cash be returned to the executor, and directed that the stipulation be given effect by delivery of promissory notes of the four corporations, or a combination of them, totaling $25,000. This was a question of fact which should not have been decided without a hearing. Further, I believe that the Surrogate did not lose jurisdiction. The stipulation of compromise and settlement of the claim filed in the Surrogate’s Court was presented by counsel to the Surrogate for his approval. By order of July 17,1969, the Surrogate approved and directed compliance with the stipulation which then became merged with the order of the court. The cases cited by the majority deal with stipulations and not orders of the court and, accordingly, do not apply.
*37McGivern, J. P., Markewich and Timer, JJ., concur with McNally, J.; Murphy, J., dissents in part in an opinion.
Order, Surrogate’s Court, New York County, entered on January 12,1971, so far as appealed from, reversed, on the law, without costs and without disbursements, and the respondent’s motion denied in toto, without prejudice to any plenary action respondent may be advised to bring.