254 A.D. 738 | N.Y. App. Div. | 1938
The plaintiff was injured in a collision between two automobiles. He was a passenger in one of the cars. Although the record is incomplete, it would appear that he brought an action against the owner of the other car and there was a compromise by which he was paid a certain sum and executed a general release, “ but expressly reserving any and all claims, which the said Jack Bossong, infant, has against Grace M. Muhleman, whose automobile was also involved in the same accident.” It appeared that Grace M. Muhleman was not the owner of the ear in which he was riding, but it was owned by the defendant Bernard Muhleman. In a suit against the latter the defendant moved for a dismissal of the complaint under rule 107, subdivision 7, Rules of Civil Practice. The motion was denied. There was evident intention,on the part of the plaintiff to reserve a cause of action against the owner of the car, and the fact that a mistake was made in naming the owner seems unimportant. In reserving rights against others liable, it is the intention that controls, and the release constitutes merely a covenant not to sue. (Gilbert v. Finch, 17311. Y. 455; Walsh v. N. Y. C. & H. R. R. R. Co., 204 id. 58.) Further, we are of opinion that the rule respecting the release of joint tort feasors by a compromise with one has been, to a large extent, abrogated by statute. (Debtor and Creditor Law, §§ 231-235; Fox v. Western New York Motor Lines, Inc., 232 App. Div. 308, 312; revd. on other grounds, 257 N. Y. 305.) As the respondent has filed no brief, the order is affirmed, without costs. Defendant may serve an answer within ten days from the entry of the order hereon. Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.