
    Foster R. Bowlby and Another, Executors, etc., of George M. Bowlby, Deceased, Appellants, v. John Ennis McQuail, Respondent.
   On reargument, order reversed upon the law, with ten dollars costs and disbursements, and motion for judgment granted, with ten dollars costs, on the ground that it was necessary, to constitute a defense, that the defendant plead a restoration to the plaintiff of what he received under the agreement of settlement; and also upon the ground that the evidence to prove the defense of fraud would be incompetent, as it would tend to vary the terms of a written agreement. This decision is without prejudice to a tender by the defendant of a restoration of the property received upon the settlement, and, in the event of a refusal by plaintiff to accept such offer, to apply at the Special Term for leave to amend the answer by setting up such tender and refusal Jaycox and Rich, JJ., concur; Young, J., concurs upon the first ground stated only; Kelly, P. J., and Manning, J., dissent and vote to affirm. [See 207 App. Div. 855.]  