Opinion
March 12, 1962
In a proceeding to vacate a decree dated March 5, 1956 and a settlement agreement dated February 23, 1956, upon which the decree was based, insofar as they affected the rights of petitioner (decedent's sister) and respondents (decedent's half-sister and half-brother respectively) in decedent's estate, on the ground that petitioner entered into the agreement by reason of the constructive fraud or by reason of the misrepresentation of material facts by the respondents' representatives, the petitioner appeals from a decree of the Surrogate's Court, Suffolk County, made and entered February 6, 1961 upon the decision of the court after a nonjury trial, which denied the application and dismissed the petition. No relief was sought by petitioner insofar as the decree and agreement made provision for decedent's alleged widow, who was also a party to the agreement. Decree affirmed, with costs, payable by petitioner personally to the respondents. In our opinion, there was a complete failure to prove the fraud or misrepresentations alleged. Moreover, petitioner could not affirm the agreement in part and disaffirm it in part (cf. Cobb v. Hatfield, 46 N.Y. 533, 536-537). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur. [ 26 Misc.2d 471.]