
    Frey C. Leeson, App'lt, v. The Massachusetts Benefit Association, Resp't.
    
      (New York Superior Court, General Term,
    
    
      Filed May 1, 1893.).
    
    Accord and satisfaction—Insurance (life).
    Defendant refused to pay- a death loss, claiming to have positive evidence that the insured had understated his age, which evidence consisted of a record of enlistment in the army, hut offered to pay a lesser sum, which plaintiff accepted, and for which she executed a release. Held, that there was a disputed liability, and that the payment and acceptance of the money constituted a good accord and satisfaction.
    Appeal from judgment dismissing complaint, entered upon findings and conclusions.
    “ The following is the opinion of the court below :
    McAdam, J.—The defendant issued a $5,000 policy on the life of plaintiff’s husband, who died subsequently. It was in favor of the plaintiff, and payable to her. The defendant refused to adjust the demand, putting its 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 cf 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 recover the remaining $1,000, on the ground that the representation that the defendant had “ positive ” proof as to the husband’s age was untrue, as the only 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 or value of the army enlistment record as evidence of the age does not rise to the dignity of fraud adequate to set aside the release. It probably created a doubt which might have led to better proof. 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. 2 Duer, 802; 96 K. Y, 640.
    And even if the plaintiff had received it under protest, it would not have destroyed this effect. 24 Hun, 78. That the liability was disputed and compromised is recited in the release itself, and this controlling circumstance appears prominently all through the case. The plaintiff has failed to establish any claim to equitable relief, and the complaint must be dismissed.
    
      A. H. Ammidown, for app’lt; J. K. Hayward, for resp’t.
   Per Curiam.

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

Sedgwick, Oh. J., and Freedman, J., concur.  