Summary
In Pascoe v. Electromatic Mfg. Corp. (3 A.D.2d 818) the court said: "In affirming [an order denying defendant's motion for summary judgment] we do not overlook the case of Lucio v. Curran (2 N.Y.2d 157).
Summary of this case from Martin v. TraverOpinion
April 2, 1957
Order unanimously affirmed, with $20 costs and disbursements to the respondents. In affirming we do not overlook the case of Lucio v. Curran ( 2 N.Y.2d 157). It is clear from the Lucio case that the courts look behind the release when an issue is raised with respect to what the parties intended to release. This the court did in the Lucio case, and, on a motion for summary judgment, held that the affidavits clearly showed that it was intended that the release cover "the instant dispute". The court had before it the simple issue as to whether the affidavits raised any triable question of fact in connection with the intention of the parties. Applying the same test to this case we must consider whether the parties intended by the releases to release a claim with respect to excise taxes. We can make no finding with respect thereto since the affidavits present a triable issue in that regard. The resolution of that issue is for the trial court.
Concur — Breitel, J.P., Botein, Rabin, Valente and McNally, JJ. [See post, p. 906.]