
    Higginson v. Second Nat. Bank of City of New York.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    Release—Consideration—Doubtful Claim.
    A check dated February 13th was presented on February 15th, by the payee to defendant bank, on which it was drawn, and paid in ignorance of the fact that the maker had died on the day the check was paid. The payee had business relations with the widow of the deceased maker, who was also administratrix, and was her confidential adviser. Four years later the administratrix sued defendant for the amount of the check, on the ground that it was a forgery, but afterwards discontinued the action, and gave defendant a general release. Held, that the doubtful nature of the claim against defendant was a sufficient consideration to support the release.
    Exceptions from circuit court. Kings county.
    Action by Charles S. Higginson, as assignee of the administratrix de bonis non of J. B. Fuller, against the Second National Bank of the City of New York. Plaintiff’s assignor was the successor of Sarah L. Puller, who had been appointed administratrix of decedent, and was afterwards removed. A verdict was directed for defendant, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.
    Argued before Barnard, P. J., and Dvichan and Pratt, JJ.
    
      Clark, <fi Sanborn, for plaintiff. Butler, Stillman & Subbard, for defendant.
   Barnard, P. J. J. B.

Puller gave a check on the defendant’s bank, where he had a deposit, just before his death, or some one forged his check on this bank, for $1,710. The check was not presented at the bank until after Puller’s death. The check was1 presented in regular course of business, and was paid by the bank in ignorance of the fact that Fuller was then dead. The payee of the check was H. B. Crosby. The check was dated February 13,1879, and was paid February 15, 1879, by a deposit to Crosby on that day. Crosby had been in some sort of business relation with Mrs. Fuller after her husband’s death. On the 24th of April, 1883, Mrs. Fuller, as administratrix of the deceased, brought an action to recover the $1,710 of the defendant. The defendant denied the claim, and the action was referred on the eve of trial. The plaintiff then discontinued the action, and executed a general release, designed to extinguish the right of action. This arrangement was perfected by an order discontinuing the action upon payment of costs to the plaintiff’s attorney and referee. This order was entered the 10th of October, 1883. In the early part of that year the attorney for the bank had found out Mr. Crosby. He was a confidential adviser in some way of the administratrix, but claimed to have a demand against her for services and money paid. Mrs. Puller had an individual claim also against Crosby. Under this state of the facts the administratrix discontinued the suit, and relinquished the claim against the bank. Is the release good ? There is no proof of fraud in procuring the release. It is evident that the whole facts in respect to the check, as between the deceased, his widow, and Crosby, are not known. There seems to be no reasonable ground for a belief in the forgery of the check. It was honorably given and paid in good faith, in ignorance of the death of the giver of the check. No doubt the family had the money, for the widow was late in bringing her action, if it was a forgery. At any rate, the question of the bank’s liability was an open one, and was represented thus by Mrs. Puller, who, with her daughter, was then supposed to be next of kin. The release is good. A disputed claim is the subject of a release. Insurance Co. v. Watson, 59 N. Y. 390. The administratrix was not bound to go to trial in her action if she knew that she had no real claim, and put the estate to the costs of the defense. The rule is the same where the party makes or defends a disputed claim as a trustee or an individual only. Ih no case will a mere release without consideration discharge the claim, but a dispute as to the validity of the claim is both a good and valuable consideration to support a release. Palmerton v. Huxford, 4 Denio, 167; Pierce v. Pierce, 25 Barb. 243; Wehrum v. Kuhn, 10 Alb. Law J. 239. The exception should therefore be overruled, and judgment given for the defendant upon the verdict, with costs. All concur.  