Opinion
March, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Lewis, JJ.
Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, on the ground that an issue of fact is presented as to whether the release set up in the motion papers was obtained by fraud and whether the whole sum of $300 was paid to the plaintiff so that he was required to tender the same to the defendant upon disaffirming the release. All concur, except Edgcomb and Lewis, JJ., who dissent and vote for affirmance. (The order granted a dismissal of the complaint as to defendant Hunt in an automobile negligence action.)