Langone v. Gaetjens, Berger & Wirth, Inc.

248 A.D. 591

Opinion

In an action in negligence, order denying defendant’s motion for a separate and prior trial of the issues as to the release reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted. The answer raises an affirmative defense by way of an executed release of the cause of action by the plaintiff; the reply alleges fraud and misrepresentation in the procurement of the release and mutual mistake as to the extent of the plaintiff’s alleged illness. We think this case is an illustration of the propriety of an exercise of discretion by the court to order a separate and prior trial of the issue raised by the affirmative defense of a general release in an action for negligence. (Boxberger v. N. Y., N. H. & H. R. R. Co., 237 N. Y. 75; Linker v. Jamison, 173 App. Div. 349; Warner v. Star Co., 162 id. 458; Piuntkosky v. Harrington’s Sons Co., 167 id. 117, 123; Arbutina v. Pittsburg Contracting Co., 168 id. 280, 282; Baumeister v. McCreery & Co., 207 id. 854; Hoad v. New York Central R. R. Co., 3 Fed. Supp. 1020.) Lazansky, P. J., Hagarty, Johnston and Adel, JJ., concur; Carswell, J., concurs in result.