
    James W. Dougherty, Respondent, v. New York Central Railroad Company, Appellant.
    
      Contract — written instrument—fraud and deceit.
    
    Appeal by the defendant from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 7, 1918, in favor of the plaintiff for $1,650.25 damages, and $106.97 costs, upon the verdict of a jury at the Erie Trial Term; also from an order entered July 17, 1918, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.
   Per Curiam:.

Defendant’s counsel may be correct in his contention that the prior negotiations and oral contract of settlement were merged in the writings and that plaintiff cannot recover upon the oral contract because he has not rescinded the written one and restored the consideration. (See Stowell v. Greenwich Ins. Co., 163 N. Y. 298; Lese v. Lamprecht, 196 id. 32; Smith v. Ryan, 191 id. 452; Whipple v. Brown Brothers Co., 225 id. 237.) We think it is unnecessary to decide that question as we are of opinion that by a liberal construction of the complaint it can be held to state a cause of action to recover damages for fraud and deceit. There was sufficient proof of such a cause of action to require the case to be submitted to the jury. While the charge did not clearly instruct the jury as to the rules of law applicable in such a case, still it was acquiesced in by counsel on both sides, and no further instructions were requested. Under the circumstances,, we think there was no error so prejudicial as to require a reversal. All concurred. Judgment and order affirmed, with costs.  