Opinion
May 23, 1958
Present — Foster, P.J., Bergan, Coon, Gibson and Reynolds, JJ.
Appeal by defendants Kenna and Walczyk from an order of the Supreme Court at Special Term entered in Warren County on September 17, 1957, granting plaintiff's motion to require said defendants to give plaintiff an inspection or a copy of a statement made by plaintiff. Appeal by the same defendants from that part of an order of the same court and entered the same date, denying their motion to strike certain items from plaintiff's reply. Plaintiff was injured in an automobile accident on October 21, 1956, while riding in an automobile owned by defendant Walczyk and operated by the defendant Kenna, which collided with an automobile owned and operated by defendant Aldous. On October 31, 1956, a representative for the insurance company covering the Walczyk automobile called on plaintiff and obtained from her a signed statement concerning the accident. The representative also obtained from plaintiff a "Covenant Not to Sue". Thereafter plaintiff retained attorneys and started the present action against all three defendants. The appealing defendants in their answer set up the covenant not to sue as a separate and affirmative defense to plaintiff's cause of action. Plaintiff's reply admits the signing of the document but alleges, among other things, that it was made without consideration; that plaintiff was under a doctor's care at the time it was signed and was unaware of the extent of her injuries; and, that she did not have an opportunity to confer with an attorney concerning the full legal effect of the paper she was signing. Involved in this appeal is the motion to strike from the reply the matters set forth above, being paragraphs numbered 2, 3 and 4 thereof. The order granting an inspection or copy of the statement taken from plaintiff is affirmed, with $10 costs. ( Wilhelm v. Abel, 1 A.D.2d 55.) The order denying the motion to strike parts of the reply was without prejudice to its renewal before the trial court. Order unanimously affirmed, without costs.