Cohen v. Cohen , 1 A.D.2d 586 ( 1956 )

Per Curiam.

Plaintiff wife has brought this fraud action against her husband, alleging that in reliance upon his fraudulent misrepresentations she was induced to discontinue three pending lawsuits and assign to him her interests in a partnership and in certain corporations. The sole and only misrepresentation attributed to defendant is that he stated ‘ ‘ he would effect a reconciliation with plaintiff, return to live with her and their children permanently, and permanently resume their marital relationship ”. The agreement that was allegedly executed by plaintiff in reliance upon this representation contained the following paragraph: “ 11. The parties hereby covenant and agree that neither has made any warranties or representations to the other, including any representations or ivarranties as to the continuation of the marital status (the parties have reconciled their differences and are now living together), outside of those expressed in this agreement, and that this agreement contains the entire agreement and understanding of the parties.” (Emphasis supplied.)

It is significant that the only representation attributed to defendant in the complaint is the one above quoted and that the only specific disclaimer of any representation contained in the separation agreement is as broad as the alleged representation and completely refutes it. The settlement agreement is annexed to the complaint and must be read in conjunction with it. It was signed not only by the parties but by their attorneys, and reflects the latters ’ careful draftsmanship. There is no allegation in the complaint that plaintiff did not read or did not understand the agreement; in fact, she initialed the agreement in the margin opposite the very paragraph disclaiming the alleged representation. Nor is there any claim that any form of duress was exercised to procure her consent to the settlement arrangements.

Just as in Ernst Iron Works v. Duralith Corp. (270 N. Y. 165, 169) the plaintiff here “ points to the cases which hold that a person cannot exempt himself from liability for fraud by inserting in his contract a blanket or merger clause. (Bridger v. Goldsmith, 143 N. Y. 424; Jackson v. State, 210 App. Div. 115; Pearson & Son, Ltd., v. Lord Mayor of Dublin, [1907] A. C. 351. See 5 Wigmore on Evidence [2d ed.], § 2439.) ” But the question in this case is not whether the conventional merger clause in the settlement agreement precludes plaintiff from introducing testimony to show that false inducing representations were made by defendant. The question rather is whether plaintiff can possibly prove she relied on the misrepresentations, since such reliance is an essential ingredient of her cause of action. We give plaintiff the benefit of every fair intendment and inference that can be drawn from the complaint and annexed agreement; but it seems to us that the specific disclaimer in the agreement of the representation alleged in the complaint effectively destroys plaintiff’s allegation that she executed the agreement in reliance upon defendant’s representation. The order dismissing the complaint for insufficiency should be affirmed.