In two separate actions between the same parties to recover damages for fraud and misrepresentations, plaintiff appeals from an order of the Supreme Court, Kings County, dated March 6, 1961, which denied his motion to set aside a settlement stipulation; such denial being without prejudice to plaintiff’s prosecution of a plenary equity suit to set aside the stipulation. Action No. 1 came on for trial on October 14, 1960, and was referred to a Special Referee. Subsequently, a stipulation was placed upon the record providing for the settlement of both actions. Order affirmed, with $10 costs and disbursements. Plaintiff and his attorney participated or acquiesced in all the proceedings before the Referee. In view of their conduct, we find no merit in the technical objections now raised by plaintiff on this appeal. Beldock, Ughetta and Brennan, JJ., concur; Nolan, P. J., and Pette, J., concur in the affirmance of the order, insofar as it denies the motion to set aside the stipulation of settlement, but vote to modify the order by adding thereto a direction that the actions be restored to the appropriate calendars for trial.
