Opinion
June 23, 1959
Resettled order and judgment unanimously modified, on the facts and on the law, and in the exercise of discretion, to eliminate the allowance of costs, and as modified is otherwise affirmed, with costs to the defendant-appellant. Rule 301 of the Rules of Civil Practice as amended in 1953 provides, among other things, that an action may be discontinued by filing with the clerk a stipulation for such discontinuance signed by the attorneys of record for all parties. The making and filing of such a stipulation has the same effect as an order of discontinuance. This rule was so amended on recommendation of the Judicial Council (see Nineteenth Annual Report of N.Y. Judicial Council, 1953, pp. 197-217). Here the parties entered into a stipulation in open court agreeing, among other things, that the action be discontinued but there was no compliance with the express provisions of this rule. The distinction is pointed up by our decision in American Progressive Health Ins. Co. v. Chartier ( 6 A.D.2d 579) wherein a formal stipulation of discontinuance, containing the terms of the settlement, had been signed by the parties and their respective attorneys and filed with the clerk. In such event, the parties are relegated to relief in the form of a new action upon the contract provisions of the stipulation. The allowance of costs, however, was an improvident exercise of discretion. Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Stevens and Bastow, JJ.