Gallo v. Montenigro ( 1962 )

Bergan, J. (dissenting).

If, as the opposing affidavit of the plaintiff Margaret Gallo states in plain words, she signed a release presented by an insurance company representative because she was told by him that the release “ was nothing more than a formality ” and that if her “ condition became worse ” it “would be” considered later, it might well be found that she was induced by fraud to sign the release.

The release itself does not say it is a formality; and it expressly states it covers unknown injuries “which may hereafter develop”. But there may be kinds of fraud in the inducement to sign an instrument which the literal avowals of the instrument itself may not entirely avoid when the circumstances of execution are in issue.

Nor is there need to tender the return of the consideration received on execution of the release. Relief shall not be denied in an action in which a transaction is alleged to be void for fraud or misrepresentation for failure to tender return of consideration before judgment (Civ. Prae. Act, § 112-g).

This is not a ease where we consider whether a finding leading to recision is deemed against the weight of evidence as in Acevedo v. City of New York (15 A D 2d 899). Our problem here is quite different and its decision depends on whether there is a triable issue. There is a triable issue and it ought not be resolved summarily.

Rabin, J. P., Valen te and Steuer, JJ., concur in the memorandum; Bergan, J., dissents in opinion in which Eager, J., concurs.

Orders, entered on October 5, 1960, denying defendants’ motion for summary judgment and granting plaintiffs’ motion for leave to reply to defendants’ affirmative defense, are reversed on the law and in the exercise of discretion, with costs, and the motion for summary judgment granted and the motion for leave to reply is denied.