Majority
Appeal by defendant from an order of the Supreme Court, Nassau County, dated March 30, 1973 and made after a hearing, which granted plaintiff’s motion to restore the case to the trial calendar. Order modified by adding thereto a provision that the granting of the motion is on condition that plaintiff agree to restoration of defendant’s action against plaintiff in Bronx County to the Trial Calendar. As so modified, order affirmed, without costs. The action was discontinued pursuant to a stipulation entered into by plaintiff’s attorney without its representatives’ knowledge and consent. This court has the power to relieve plaintiff of such- a stipulation if both sides can be restored to substantially their former position {Humphries V. Shapiro, 187 App. Div. 96 ). In the ease at bar, however, in reliance upon the stipulation, defendant’s attorney had another ease, one by this defendant against plaintiff, marked “settled”. Thus, only if plaintiff’s representatives agree to have defendant’s case reinstated should plaintiff’s action be restored notwithstanding the stipulation of discontinuance. Hopkins, Acting P. J., Latham, Gulotta and Christ, JJ., concur.