Tully v. Prudential Ins. Co. of America

Order granting motion for summary judgment, and judgment entered thereon", reversed upon the law and the facts, with costs, and complaint dismissed, with costs. Without passing upon the procedure adopted by the plaintiff in this ease, we are of opinion that the decision by the learned Trial Term, canceling and setting aside the general release executed by plaintiff’s assignor, is without evidence to support it. We find that the release executed by plaintiff’s assignor and the surrender, for cancellation, of the policies upon which plaintiff bases her action were not induced or procured by defendant by any fraud practiced upon her. The determination of this issue against plaintiff disposes of all her claims. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings and conclusions will be made. Lazansky, P. J., Hagarty, Seeger and Carswell, JJ., concur; Young, J., dissents. Settle order on notice.