Opinion
June 9, 1916.
Gaylord B. Van Kirk [ Amos H. Stephens with him on the brief], for the appellants.
Anthony J. Ernest [ Martin T. Manton with him on the brief], for the respondent.
This is an action to recover damages for the death of plaintiff's decedent through the alleged negligence of the defendants. The defendants set up a general release made by the decedent after the accident and before his death. The plaintiff served no reply, and the defendants made no application to the court to compel the service of a reply. As the case stood when the trial was reached the plaintiff might meet the defense of a general release by "traverse or avoidance as the case requires." (Code Civ. Proc. § 522.) In other words, she could offer evidence to avoid the release on equitable grounds. ( Davis Confectionery Co., Inc., v. Rochester G. Ins. Co., 141 App. Div. 909; Mandeville v. Reynolds, 68 N.Y. 528; Arthur v. Homestead Fire Ins. Co., 78 id. 462; Keeler v. Keeler, 102 id. 30.) The defendants moved for a separate trial of the issue as to the general release. The motion was denied and the defendants appeal. This court has repeatedly declared the policy that under such circumstances, where the plaintiff seeks to avoid a general release pleaded by the defendant, the court at Special Term should direct a separate trial of the issues as to the general release. ( Warner v. Star Co., 162 App. Div. 458; Arbutina v. Pittsburg Contracting Co., 168 id. 280; Piuntkosky v. Harrington's Sons Co., 167 id. 117.)
The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the motion of the defendants should be granted, without costs.
JENKS, P.J., THOMAS, MILLS and RICH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and defendants' motion granted, without costs.