Pimpinello v. Swift & Co.

227 A.D. 740 | N.Y. App. Div. | 1929

Order denying motion to dismiss amended complaint affirmed, with ten dollars costs and disbursements. No opinion. Lazansky, P. J., Young and Carswell, JJ., concur; Hagarty and Seeger, JJ., dissent and vote to reverse, with the following memorandum: In this action plaintiff seeks to have canceled and returned to him a general release executed in a prior action brought by him to recover damages resulting from personal injuries, to have vacated the order of discontinuance and to have the case restored to the calendar for trial. The gist of plaintiff’s claim is that, although he had authorized his attorney to settle his action, the attorney represented to him that the defendant had agreed to pay on account of his claim the sum of $750 and that when the case would be reached for trial it (defendant) would pay a great deal more money in settlement. Relying upon these representations, plaintiff executed the general release believing the same to be a receipt in payment of the sum of $750 on account. We are of the opinion that in the absence of any allegations that the defendant participated in or had knowledge of the alleged fraud perpetrated upon plaintiff by his attorney, who, coneededly, had authority to settle the action, the complaint does not state a cause of action.