Polesir v. All Borough Transportation Corp.

City of New York Municipal Court

Polesir v. All Borough Transportation Corp.

172 Misc. 946, 16 N.Y.S.2d 762, 1940 N.Y. Misc. LEXIS 1370

CourtCity of New York Municipal Court

DecidedJanuary 11, 1940

StatusPublished

Cited by1 cases

This text of 172 Misc. 946 (Polesir v. All Borough Transportation Corp.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Polesir v. All Borough Transportation Corp., 172 Misc. 946, 16 N.Y.S.2d 762, 1940 N.Y. Misc. LEXIS 1370 (N.Y. Super. Ct. 1940).

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Opinion

Evans, J.

The plaintiff has had a judgment in a personal injury-action against both defendants. The corporate defendant has paid the judgment. It now asks for contribution against the individual defendant. Ordinarily it would be entitled to such contribution on motion and without separate action being brought, because both defendants have appeared in the original action. (Civ. Prac. Act, § 211-a.)

But between the individual defendant and the corporate one there had been a prior action involving property damage arising as a result of this accident. That action was settled, and the corporate defendant signed a release to the individual defendant which absolves the individual defendant from any liability to it arising out of this accident. The general release is a complete and unambiguous document, which may not be varied by parol evidence. (Kirchner v. New Home S. M. Co., 135 N. Y. 182.)

If, on the other hand, the intention of the release was not to avoid contribution, an action may be brought to reform the release. (Zimmerman v. Loft, 125 App. Div. 725.)

The making of this motion does not constitute an election of remedies, nor will its denial be res judicata, in an action to reform the general release. (Baird v. Erie R. R. Co., 72 Misc. 162; affd., 148 App. Div. 452; affd., 210 N. Y. 225.)

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Evans, J.

The plaintiff has had a judgment in a personal injury-action against both defendants. The corporate defendant has paid the judgment. It now asks for contribution against the individual defendant. Ordinarily it would be entitled to such contribution on motion and without separate action being brought, because both defendants have appeared in the original action. (Civ. Prac. Act, § 211-a.)

But between the individual defendant and the corporate one there had been a prior action involving property damage arising as a result of this accident. That action was settled, and the corporate defendant signed a release to the individual defendant which absolves the individual defendant from any liability to it arising out of this accident. The general release is a complete and unambiguous document, which may not be varied by parol evidence. (Kirchner v. New Home S. M. Co., 135 N. Y. 182.)

If, on the other hand, the intention of the release was not to avoid contribution, an action may be brought to reform the release. (Zimmerman v. Loft, 125 App. Div. 725.)

The making of this motion does not constitute an election of remedies, nor will its denial be res judicata, in an action to reform the general release. (Baird v. Erie R. R. Co., 72 Misc. 162; affd., 148 App. Div. 452; affd., 210 N. Y. 225.)

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Bluebook (online)

172 Misc. 946, 16 N.Y.S.2d 762, 1940 N.Y. Misc. LEXIS 1370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polesir-v-all-borough-transportation-corp-nynyccityct-1940.

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