281 A.D. 1067 | N.Y. App. Div. | 1953
Motion for reargument denied; motion for leave to appeal to the Court of Appeals denied. Memorandum: On deciding the appeal of the defendant we did not overlook the so-called release dated August 10, 1950. We reached the conclusion that the grounds on which the objection was made to its receipt in evidence were not well taken. However, the instrument is not a self-executing release. By its terms it is an agreement to release “ upon fulfillment of ” its “ covenants.” It appeared from the evidence of both Abramowitz and Feldman that the “ covenants ” therein contained were not fulfilled. It further appeared that the instrument was superseded by a later instrument dated October 19, 1950, which was. received in evidence. Under such circumstances the failure to receive the instrument dated August 10, 1950, was not such error as to require reversal of the judgment. Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ. [See ante, p. 793.]
