Skipworth v. Cooper

37 A.D.2d 906, 325 N.Y.S.2d 485, 1971 N.Y. App. Div. LEXIS 3133

Opinion

— Order unanimously affirmed, with costs, Goldman, P. J., not participating. Memorandum: The finding that the release was the product of misrepresentation is supported by the evidence. Repayment by plaintiff to defendant or his insurance company of the amount received by him from defendant on giving the release is not a prerequisite to maintaining this action (see CPLR 3004; Marr v. Tumulty, 256 N. Y. 15, 21 et seq.; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., pars. 3004.01-3004.06). In Marr (p. 22) the court said, “Suitable conditions may be imposed in the decree ”. The ultimate rights of the defendant with respect to the payment he made for the release are fully and properly protected by the order appealed from and the parties will be bound thereby upon entry of the judgment after the determination of the merits of plaintiff’s action. This accords with established practice (Finke v. Iris Cab Corp., 1 A D 2d 692). (Appeal from order of Onondaga Trial Term dismissing defense of general release.) Present — Goldman, P. J., Witmer, Gabrielli, Moule and Cardamone, JJ.