Single v. Whitmore

282 A.D. 915, 125 N.Y.S.2d 464, 1953 N.Y. App. Div. LEXIS 5405

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1953
• Status: Published

Opinion

—-Judgment affirmed, with costs. All concur, except Vaughan and Piper, JJ., who dissent and vote for reversal and for dismissal of the complaint in the following memorandum: The release in question was drawn by plaintiff’s attorney and executed by plaintiff. The release after reciting the agreement on February 18, 1950, which is the instrument containing the setback restrictions, then provided: “And whereas said parties now desire to release each other from any future liability arising from said agreement.” It then goes on to “release each other * * * of and from all future liability”. We think this instrument relieved both parties from any further liability under the agreement of February 18, 1950, including the setback restrictions. “If a demand falls fairly within the terms of the release it is discharged thereby, whether or not it was contemplated by the parties, and whether or not they were aware of its existence.” (76 C. J. S., Release, § 52, p. 699; see, also, Rector of St. James Church v. City of New York, 261 App. Div. 614; People ex rel. McDonough V. Board of Managers of Buffalo Asylum, 96 N. Y. 640, and Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182.) Where, as is the case here, the language of the release is not ambiguous we cannot, in the absence of fraud, go behind the clear statement of the instrument to look for the intent of the parties. (Appeal from a judgment for plaintiff in an iniunetion action.) Present —MeCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.