Hoffman v. Hoffman

The complaint does not directly or by inference disclose that the compromise agreement between plaintiff and the legatees of Cora B. Hoffman was in anywise concerned with the oral contract upon which the present action is based. The complaint explicitly alleges that the consideration given by the legatees and received by the plaintiff was for “ the withdrawal of bis objections and the consent to probate.” It nowhere appears that it was given and received for a settlement and cancellation of plaintiff’s alleged claim under the oral contract.

The withdrawal of the objections and the consent to probate, even for a money consideration, do not bar pursuit under the oral contract. (Phalen v. United States Trust Co., 186 N. Y. 178; Kine v. Farrell, 71 App. Div. 219; McCallum v. Pickens, 126 Misc. 436; affd., 217 Ápp. Div. 714.)

If defendants contend that the consideration was paid by them to plaintiff not only for the withdrawal of the objections and the consent to probate, but also for a release of his claim under the oral contract, they are at liberty to set up that contention by way of answer. As against the attack here made upon it, the complaint is good.

The order should be reversed, with ten dollars costs and disbursements.

All concur. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ.

Order reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendants to answer within ten days upon payment of the costs of the motion and of this appeal.