Horlick v. Horlick , 243 A.D. 559 ( 1934 )

In an action to recover damages for alienation of affections, order granting defendant’s motion under rule 107, subdivision 7, of the Rules of Civil Practice, to dismiss the complaint because the cause of action had been released, modified by striking therefrom the provision directing a dismissal of the complaint, and by inserting in place thereof a provision directing that the question of fact as to the validity and applicability of the release shall be tried by a jury, whose findings shall be reported to the court for its action, pursuant to rule 108 of the Rules of Civil Practice, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Judgment dismissing complaint, entered on the foregoing order, reversed on the law and the facts, with costs to the plaintiff to abide the event of the trial. (Perloff v. Kelmenson, 226 App. Div. 696; Mohamed v. Unifruitco Steamship Co., Ltd., 223 id. 791.) The affidavits raise an issue of fact as to the applicability of the general release and the cause of action set out in the complaint, as well as the validity thereof in its relation to that cause of action. Appeal from order denying reargument dismissed, without costs. Young, Hagarty, Carswell and Tompkins, JJ., concur; Lazansky, P. J., not voting.