
    William H. Shannon, Jr., Respondent, v. Eugene Horton, Appellant.
    
      Mistake —fraud — evidence.
    
    Appeal by the defendant from a judgment of the Supreme Court entered in the office of the clerk of the county of Orange on the 16th day of December, 1914, in favor of the plaintiff, and also from an order entered in said clerk’s office on the 4th day of January, 1915, denying his motion for a new trial.
   Thomas, J.:

The evidence shows that during the year preceding the execution of the release the plaintiff had full knowledge of the agency existing between the defendant and Stever. He has been permitted to avoid the release upon his untrue statement that he had not such knowledge and upon evidence that the subject of the present action was not involved in the former account rendered to the defendant, and was not discussed or asserted at or before the time the release was made. The letter of June 32, 1911, indicates not only the realization of the relation of Horton and Stever, but also that it had been a matter of consideration on the part of the plaintiff. So, failure of the defendant to discuss the matter or failure to advise the plaintiff could not have induced the plaintiff to sign the release. What, then, has the plaintiff proved tending to show mutual mistake and justifying an avoidance of the release ? I discover nothing, even within the rules laid down in Kirchner v. N. H. S. M. Co. (185 N. Y. 182), which plaintiff invokes. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversedland new trial granted, costs to abide the event.  