
    Nettie Bloom, Individually and as Administratrix, etc., of Herman Bloom, Deceased, Appellant, v. The Guardian Life Insurance Company of America, Respondent.
   In an action to rescind a settlement agreement whereby a policy of life insurance, containing provision for disability benefits, was canceled in consideration of the payment of $12,000 to plaintiff’s intestate, judgment dismissing the complaint on the merits unanimously affirmed, with costs. Assuming that the original plaintiff neither knew nor should have known at the time that he executed the settlement agreement that his claimed total disability resulted from a brain tumor rather than heart disease, there was no mutual mistake and no fraud on the part of defendant. The agreement embraced not merely an adjustment of the claim for disability; it served to terminate the contractual relationship of the parties. It was fairly made and is valid despite a mistake of fact by one of the parties. (Sears v. Grand Lodge A. O. U. W., 163 N. Y. 374, 378.) Present - Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ.  