Opinion
July 14, 1958
Appeal from an order of the County Court, Suffolk County, denying appellant's application to vacate and set aside an order made January 17, 1952 pursuant to article 80 of the Civil Practice Act, authorizing the settlement and compromise of the infant's claim against respondent, arising out of an automobile accident. In substance, it is appellant's contention that the attorney for respondent's insurance carrier, who prepared the papers for the approval of the settlement in the absence of representation of the infant by counsel, was guilty of fraud and overreaching in concealing the fact that an injury to the infant's coccyx was due to the accident. Order affirmed, without costs. Whether the settlement and general release given pursuant thereto may be rescinded or otherwise avoided is a question which should be determined in the action which has been instituted against respondent to recover damages for the injuries sustained by the infant in the accident. (Cf. Fonville v. Irving Poultry Co., 243 App. Div. 528; Finke v. Iris Cab Corp., 1 A.D.2d 692. ) The parties may, if necessary, amend their pleadings in that action so that the issues respecting the compromise may be properly presented therein. Nolan, P.J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.