Thurman v. Fiske.

1st. That the necessity for a written agreement was waived by the consent and agreement of the parties in open court, citing Keator agt. Ulster and Delaware Plank Road Company (7 How. Pr. Rep. 41).

2d.- That the provision of section 313 of the Code is merely directory, citing Foster agt. Bryan (26. How. Pr. Rep. 164).

*3983d. That the plaintiff was estopped by the agreement and the defendant’s payment, without objection or notice of recall by the plaintiff, citing Dezell agt. Odell (3 Hill, 215).

All the judges concurring, order affirmed on first and third grounds above, with costs.