
    (3 Misc. Rep. 415.)
    LESSON v. MASSACHUSETTS BEN. ASS'N.
    (Superior Court of New York City,
    General Term.
    May 1, 1893.)
    1. Rescission of Contract—Fraud.
    A release of a claim on a life insurance policy on payment of part of the amount thereof will not be set aside because induced by the representations of the company that it had positive proof of deceased’s age, and that it had been understated in his application, when the only evidence that it had was a record of enlistment of deceased in the army; this not amounting to fraud.
    3. Accord and Satisfaction—Consideration.
    That the liability of an insurance company on a policy was disputed furnished sufficient consideration for a compromise and release.
    Appeal from special term.
    Action by Frey C. Lesson -against the Massachusetts Benefit Association, to set aside a release of claim on a life policy. From judgment dismissing complaint, plaintiff appeals.
    Affirmed.
    The following opinion was rendered by McADAM, J., at special term: .
    The defendant issued a $5,000 policy on the life of plaintiff’s husband, win died subsequently. It was in favor of the plaintiff, and payable to her. The defendant refused to adjust the demand, putting the refusal on the ground that the plaintiff’s husband had understated his age, and had thereby defrauded the defendant in respect to the risk and amount of premium charged. The officers of the defendant told the plaintiff that they had positive evidence as. to the true age, and offered her $4,000 by way of compromise. She accepted the money, and executed a release under seal. The present suit is an effort to set aside the release, and to recover the remaining $1,000, on the ground that the representation that the defendant had “positive” proof as to her husband’s age was untrue, as the ouly thing resembling evidence the defendant had was a record of enlistment in the army, which was not competent to establish the disputed fact. The subject of age was one about which the defendant could have no knowledge superior to that possessed by the plaintiff, and no one can furnish “positive” proof of the time of birth except persons present at' the occasion, and no one assumed that the defendant had such witnesses. The fact that the defendant overrated the degree of value of the army enlistment record as evidence of the age does not rise to the dignity of fraud. It probably created a doubt which might have led to better proof of fraud adequate to set aside the release. It is sufficient, however, as matter of defense, that there was a disputed liability, which the parties adjusted at $4,000. The payment and acceptance of the money .constituted a good accord and satisfaction without any writing, (Taylor v. Nussbaum, 2 Duer, 302; People v. Board, etc., of Buffalo State Asylum, 96 N. Y. 640;) and even if the plaintiff had received it under protest it would not have destroyed this effect, (Looby v. Village of West Troy, 24 Hun, 78.) That the liability was disputed and compromised is recited in the release itself, and this controlling cireumstance appears prominently all through the case. The plaintiff has failed to establish any claim to equitable relief, and the complaint must be dismissed.
    Argued before SEDGWICK, C. J., and FREEDMAN, J.
    A. H. Ammidown, for appellant.
    J. K. Hayward, for respondent.
   PER CURIAM.

Judgment affirmed, with costs, upon opinion at special term.  