
    Lesson v. Massachusetts Benefit Association.
    (New York Superior Court
    General Term,
    May, 1893.)
    Plaintiff accepted $4,000 as a compromise of a claim of $5,000, and executed a release under seal. In a suit to set aside the release for fraud and to recover the remaining §1,000, held, that payment and acceptance of $4,000 constituted an accord and satisfaction.
    Defendant claimed to have positive proof that plaintiff’s husband had understated his age in his application for insurance and thereby defrauded defendant. The only thing resembling evidence the defendant had on this point was a record of enlistment in the army. Held, that as it was not competent evidence to establish the fact of age, plaintiff was not entitled to equitable relief, as the army enlistment record of age of plaintiff’s husband did not rise to the dignity of fraud adequate, to set aside the release.
    Ajppeal from judgment dismissing complaint entered upon findings and conclusions.
    
      At Special Term the following opinion was given by 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 iri 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 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 1 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. Taylor v. Nussbaum, 2 Duer, 302; People ex rel. McDonough v. Board of Managers, etc., 96 N. Y. 640.
    “And even if the plaintiff had received it under protest it would not have destroyed this effect. Looby v. West Troy, 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. II. Amrmdown, for plaintiff (appellant).
    
      J. II. Hayward, for defendant (respondent).
   Per Curiam.

Judgment affirmed, with costs upon opinion at Special Term.  