Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967); Hoffman v. Bloomsburg S. R. Co., 157 Pa. 174, 27 A. 564 (1893). A release is contractual in nature, The Cayuga, 59 F. 483 (6th Cir. 1893); Rill v. Darling, 21 A.D.2d 955, 251 N.Y.S.2d 396 (1964); Bruns v. Light, 74 S.D. 418, 54 N.W.2d 99 (1952), and it has been held to be a contract or a species of a contract. Little Rock Packing Co. v. Massachusetts Bonding Ins. Co., 262 F.2d 327 (8th Cir. 1959); Sears, Sucsy Co. v. Insurance Co. of North America, 392 F. Supp. 398 (N.D.Ill. 1974).
" Further, the "ritualistic" language of releases will not bar claims if the release was the result of fraud or mutual mistake.Farrington v. Harlem Savings Bank, 280 N.Y. 1, 19 N.E.2d 657 (1939); Rill v. Darling, 21 A.D.2d 955, 251 N.Y.S.2d 396, 398 (3d Dept. 1964).Evans v. S.J. Groves Sons, 315 F.2d 335, 340 (2d Cir. 1963) (Friendly, J.).
a mere receipt for money to pay a doctor's bill, was applied in other cases of fraud ( Wheeler v. State of New York, 286 App. Div. 310; Scheer v. Long Is. R.R. Co., 282 App. Div. 724). Fraud, however, had long been a ground for setting aside a release (see Fleming v. Brooklyn Hgts. R.R.Co., 95 App. Div. 110). The requirement of an "agreement fairly and knowingly made" has been extended, however, to cover other situations where because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of the injured party (see, e.g., Duch v. Giaquinto, 15 A.D.2d 20; Landau v. Hertz Drivurself Stas., 237 App. Div. 141; Castenada v. Ruderman, 48 Misc.2d 321). Other cases, often discussing fairness, have turned on a finding that, despite express language covering unknown injuries, the parties contemplated a release only as to known injuries ( Rill v. Darling, 21 A.D.2d 955; Scheer v. Long Is. R.R. Co., supra; Brown v. Manshul Realty Corp., 271 App. Div. 222, affd. 299 N.Y. 618, supra; Barry v. Lewis, 259 App. Div. 496, mot. for lv. to app. den. 259 App. Div. 1072; Parker v. United Tank Truck Rental, 21 Misc.2d 246; Kropp v. Diamond K Markets, 207 Misc. 1030).
Hence, in light of the guidance detailed in Mangini v. McClurg (supra, at 565), "[e]ven where a releasor has knowledge of the causative trauma, it has been held that there must be actual knowledge of the injury. Knowledge of injury to an area of the body cannot cover injury of a different type and gravity". In noting that plaintiff bears the burden of persuasion on this issue, we find that plaintiff has made a prima facie showing of mutual mistake and that Supreme Court properly found a question of fact as to "whether plaintiff suffers from an injury unknown at the time of the release or suffers merely from an unanticipated consequence of a known injury" (Spiegel v Gnadzinski, 155 A.D.2d 899; see, Mangini v. McClurg, supra; see also, Rill v. Darling, 21 A.D.2d 955, 956). Similarly, we agree with Supreme Court that the question of whether the release was fairly and knowingly made should be left to the trier of fact (see, Mangini v. McClurg, supra, at 567-568; Rill v. Darling, supra, at 956).
We cannot say as a matter of law that the trial court erred in its conclusion that the plaintiff, Jessie Becker, was not entitled to the relief sought. The dismissal of the third and fourth causes of action would have to be affirmed even if the bar of the doctrine of unclean hands had not been interposed by the trial court, inasmuch as plaintiff did not sustain her burden of proving either mistake (and see Rill v. Darling, 21 A.D.2d 955; Moyer v. Scholz, 22 A.D.2d 50), or fraud. Judgment affirmed, without costs.
Knowledge of injury to an area of the body cannot cover injury of a different type and gravity." (See, also, Rill v Darling, 21 A.D.2d 955; Duch v Giacquinto, 15 A.D.2d 20; Castenada v Ruderman, 48 Misc.2d 321, affd 26 A.D.2d 907, affd 19 N.Y.2d 1006.) There is no indication whatsoever that there was doubtful liability on the part of plaintiff Carol so that she had agreed to take anything she could get in settlement of all claims.
Defendant's motion for summary judgment on his defense has been denied by Special Term and the denial affirmed on appeal. ( Rill v. Darling, 21 A.D.2d 955.)