Carton, Crane and Kole. The opinion of the court was delivered by Carton, P.J.A.D.
Plaintiffs Norma Honeywell and Janice Westdyk appeal, pursuant to leave granted, from an order of the Chancery Division denying their motion to enter judgment in accordance with the terms of a settlement agreement allegedly agreed upon by the parties.
Plaintiffs, who are sisters, brought action against their brother, defendant Bruce C. Bubb, and his wife Marilyn, to set aside a conveyance of real property from the late Evelyn W. Bubb, mother of the parties, to defendants as tenants by the entirety. After a pretrial conference held in June 1973 the case was scheduled for trial on the following October 2. Prior to actual commencement of the trial the parties agreed upon a settlement and its terms were spread upon the record. Thereafter defendant Bruce C. Bubb advised his attorney that he would no longer honor the settlement and retained other counsel to represent him. Whereupon plaintiffs moved for entry of judgment on the settlement. The presiding judge denied this motion, restored the
matter to the trial calendar, and disqualified himself from hearing the case.
The conveyance took place in September 1971. The real estate conveyed by the deed comprised the bulk of decedent's estate. About four months earlier decedent had executed a will dividing her estate equally among her three children. Decedent died on January 23, 1972. In their action plaintiffs sought to set aside the deed made by decedent on the ground of undue influence by defendant Bruce Bubb and to obtain an accounting from him in his capacity as executor of decedent's estate.
Plaintiffs and their brother, defendant Bruce C. Bubb, were in court when the case came on for trial. Defendant Marilyn Bubb was not present. However, the record indicates she was in telephone communication with her attorney. After settlement negotiations involving offers and counter-offers, an agreed figure of $25,000 was arrived at in full settlement of all of plaintiffs' claims relating to the real estate and their interest in the estate of their late mother. The real estate involved had a value estimated at somewhere between $50,000 and $60,000.
The record shows that the trial judge asked that the terms of the settlement be placed on the record. It also shows that plaintiffs' counsel made a brief statement as to the nature of the action and the terms of the settlement. Defendants' counsel was present at the counsel table and concurred with the statement of settlement as presented by plaintiff's counsel. Defendant Bruce C. Bubb was sworn as a witness. He was examined by his own attorney, by plaintiffs' counsel and by the court, during the course of which examination he acknowledged that he fully understood the terms of the settlement and concurred with it. Plaintiffs were not sworn as witnesses but were present in court and acknowledged their understanding and acceptance of the settlement. The court then indicated that a formal stipulation of dismissal or order should be submitted for the record. However, when plaintiffs' counsel prepared the
stipulation he was informed that defendants refused to abide by its terms. The proceedings to confirm the settlement and the present appeal followed.
At the hearing before the court on December 5 in proceedings on a motion by defendants to set aside the settlement, the court commented:
Based upon the information I have before me * * *, it was a good settlement -- I am very reluctant to set the matter aside. However, you [defendant] raised a point which I cannot permit to remain without being aired fully. You have raised a question concerning the Canons of Ethics, and I will not permit the situation to remain settled when you have ...