Heavner v. Clarke

229 A.D. 786

Opinion

Order granting plaintiff’s motion for a stay and denying defendant’s motion to dismiss the complaint reversed upon the law, with ten dollars costs and disbursements, motion for stay denied, without costs, and motion to dismiss complaint granted, with ten dollars costs. Under section 40 of the Surrogate’s Court Act, as amended by chapter 439 of the Laws of 1921 and chapter 100 of the Laws of 1924, the Surrogate’s Court is given jurisdiction to determine whether or not the general release given by the plaintiff to the defendant was obtained by fraud. (Matter of Cook, 244 N. Y. 63; Matter of Malcomson, 188 App. Div. 600; Matter of Raymond v. Davis, 248 N. Y. 67.) Lazansky, P. J., Young, Kapper, Carswell and Scudder, JJ., concur.