Kam v. Blank

23 Misc. 2d 951, 199 N.Y.S.2d 760, 1960 N.Y. Misc. LEXIS 3370

Opinion

Per Curiam.

The court erred in determining as a matter of law that the general release delivered to John I. Phlegar, Jr., discharged the defendant, a cotort-feasor. The general release effected a settlement of the action in New Jersey. Under the circumstances, the law of New Jersey should have been applied in a determination of the effect of the general release upon the liability of a cotort-feasor. The burden of proof is upon the defendant to sustain his contention that a general release under the law of New Jersey releases a cotort-feasor.

The judgment and order should be unanimously reversed, with costs to plaintiff to abide the event and motion for a new trial granted.

Concur — Di Giovanna, Benjamin and Daly, JJ.

Judgment and order reversed, etc.