(dissenting). As the record stands, the defendant fraudulently induced the plaintiff to settle for seventy-five dollars in payment for minor injuries, when in fact the plaintiff had, unknown to him, a fracture of the skull. This action is in effect to recover damages for the more serious injuries.
In actions involving property, if a party wishes to rescind, a tender or restoration of benefits received is necessary to maintain the action. (Vail v. Reynolds, 118 N. Y. 297.) In this type of action, where the compromise is made before the nature and extent of the injuries have been discovered, and there is mutual mistake or fraud, the rule is not so clear that to overcome the apparent validity of the release, tender of a small amount received is essential. Either the plaintiff offers no proof in respect to the injuries for which compensation has been made, or there is credit given on the trial. (Dominicis v. United States Casualty Co., 132 App. Div. 553; Landau v. Hertz Drivurself Stations, Inc., 237 id. 141; Harvey v. Georgia, 148 Misc. 633; Moses v. Carver, 164 id. 204; Larscy v. *315Hogan & Sons, 239 N. Y. 298.) Where there is fraud it is in the nature of an action to recover further damages, retaining what he has received. (Vail v. Reynolds, supra.)
In modern practice the claim that there should be tender of such small sums received as a compromise seems to have been abandoned. In the numerous cases of this type on appeal to this court in the past five years, this is the first time the question has been raised.
Further, the motion to dismiss on the opening was premature. The defendant had the burden of estabhshing the release as a defense. (Boxberger v. N. Y., N. H. & H. R. R. Co., 237 N. Y. 75.) I vote for reversal and a new trial.
Taylor, J., concurs.
Judgment affirmed, with costs.