Opinion
March 15, 1939.
Present — Sears, P.J., Lewis, Cunningham, Taylor and Dowling, JJ.
Judgment reversed on the facts as a matter of discretion, without costs, and order modified on the facts as a matter of discretion by adding to the provisions of the order the words, "unless the plaintiff serve an amended reply within ten days after service of a copy of the order of this Court, upon payment of ten dollars costs," and, as so modified, affirmed, without costs. Memorandum: The defendants' testator was originally the defendant in this action, and since his death his executors have been substituted as defendants. The answer filed by defendants' testator during his lifetime set up as a defense that the plaintiff had executed and delivered a release, releasing him from any claim arising out of the transactions between them. The reply of plaintiff was insufficient to put in issue the execution and delivery of the release pleaded by the defendant in his answer. ( Gilbert v. Rothschild, 280 N.Y. 66, decided February 28, 1939.) However, we believe that the judgment dismissing the complaint should not have been granted upon the pleadings, but that the plaintiff should have been granted leave to serve an amended reply, in view of the fact that the burden is upon the defendants to prove that the release and all transactions between the plaintiff and defendants' testator while the latter was acting as attorney for the former, were fair and reasonable and were fully known and understood by the plaintiff. ( Matter of Howell, 215 N.Y. 466, 472; Kissam v. Squires, 102 App. Div. 536; Feiber v. Copeland, 232 id. 504.) All concur. (The judgment dismisses the complaint in an action for damages for breach of contract. The order directed such judgment.)