Order, Supreme Court, New York County, entered on February 4, 1971, affirmed, without costs and without disbursements.
Concur — Stevens, P.J., McGivern, Markewich and McNally, JJ.; Nunez, J., dissents in the following memorandum: In denying plaintiff's motion to restore the case to the Trial Calendar the court below not only abused its discretion, it also failed to follow the well-established rule of law that the authority of an attorney does not extend to a settlement or release. It has been squarely so held: "It is the law in the State of New York that an attorney cannot settle a suit and conclude his client in relation to the subject in litigation without the client's consent. ( Barrett v. Third Avenue R.R. Co., 45 N.Y. 628; Mandeville v. Reynolds, 68 id. 528; Bush v. O'Brien, 164 id. 205.) The great weight of authority throughout the United States is to the same effect. ( United States v. Beebe, 180 U.S. 343, 352)." ( Countryman v. Breen, 241 App. Div. 392, 394, affd. 268 N.Y. 643. ) In furtherance of clearing up the existing clogged calendars, this widow and her children are being denied their day in court in this wrongful death action. Such is indeed a harsh and undeserved penalty. The interests of justice require a reversal and a granting of plaintiff's motion to restore and for an extension of time to file a statement of readiness.