¶1The action is brought to recover $5,000 under an agreement dated December 29, 1899, made by one George A. Farnham, the plaintiff’s brother, to will that sum to her in the event that he predeceased her. George A. Farnham died leaving a will which was admitted to probate July 20, 1922, in which the defendant was appointed executrix and letters issued to her. This will contained no provision for the payment of the above sum to plaintiff.
¶2The answer is in substance a general denial and a special defense alleging the execution and delivery by plaintiff to said George A. Farnham of a general release bearing date June 1, 1908, expressing a consideration of $177 and releasing him from all claims, etc., from the beginning of the world to the date of the release.
¶3Plaintiff moved to strike out this defense as insufficient in law, and from an order denying her motion she appeals to this court.
¶4*574I think this order should be reversed. It is undoubtedly the general rule that demands originating at the time.a general release is given or subsequently, and demands subsequently maturing, are not discharged by the release unless expressly embraced therein or falling within a fair import of the terms implied. (Miller v. Schloss, 159 App. Div. 704; Mitchell v. Mitchell, 170 id. 452.)
¶5The claim sought to be enforced in this action did not and could not mature so as to give a right of action to plaintiff until a breach of the agreement. That of course could not occur until Farnham’s death without making a will providing for the payment of plaintiff’s claim. It seems quite clear, therefore, that this general release could not include the claim in question and, therefore, constitutes no defense.
¶6Nor could this release be modified or explained by parol evidence so as to cover plaintiff’s claim. The instrument itself is the only competent evidence of the agreement of the parties unless avoided for fraud, mistake, duress or some like cause. (Kirchner v. N. H. S. M. Co., 135 N. Y. 182.) In the case at bar no mistake or fraud is alleged, but the instrument itself is relied upon as constituting a defense.
¶7The order should be reversed upon the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
¶8Jaycox, Kelby and Kapper, JJ., concur; Kelly, P. J., dissents.
¶9Order reversed upon the law, with ten dollars costs and disbursements, and motion to strike out separate defense granted, with ten dollars costs.