Wickers v. Wickers , 195 N.Y.S.2d 603 ( 1959 )

In an action to recover damages for personal injuries, the answer set up the defense of general release, and the parties agreed to try the issue of general release separately. The appeal is from a judgment dismissing the complaint after trial Of such issue. Judgment affirmed, with costs. No opinion. Beldoek, Ughetta and Hallinan, JJ., concur; Wenzel, Acting P. J., and Kleinfeld, J., dissent and vote to reverse the judgment and to grant a new trial, with the following memorandum: While it is true that appellant could not identify the person at whose request she signed the general release, she did testify that he stated that he represented her daughter-in-law, the respondent herein. There was no reason for appellant to suspect that he represented a lawyer or an insurance company. He was certainly not a “ mythical ” person, as denominated by the court, for he was armed with a formal general release, and he notarized appellant’s signature. Under the facts disclosed it would not be necessary for the court to guess as to his representative capacity. No legal proceedings had been initiated. Had appellant been informed that her caller represented an insurance company or a lawyer, she might have been on her guard. Appellant should have been permitted to show all the circumstances surrounding the execution of the release, viz., that she had no intention of executing a general release (Farrington v. Harlem Sav. Bank, 280 N. Y. 1; Boxberger v. New York, New Haven & Hartford R. R. Co., 237 N. Y. 75) or that her signature had been obtained by trick or device, even if the person who obtained it was a stranger to the agreement (cf. Marden v. Dorthy, 160 N. Y. 39, 48 et seq.; Caccioppoli v. Lemmo, 152 App. Div. 650; Blum v. Hoffkins, 210 App Div. 748, affd. 244 N. Y. 531).