Pretzfelder v. Kahn

281 A.D. 675, 117 N.Y.S.2d 439, 1952 N.Y. App. Div. LEXIS 3201

Opinion

Order unanimously reversed, with $20 costs and disbursements to the appellant, the motion granted and the complaint dismissed, and judgment is directed to be entered herein in favor of the defendant, with costs. It is obvious that the plaintiff has suffered only a single injury. She is not entitled to double satisfaction. Where the plaintiff has already been recompensed in her negligence action against the active wrongdoer and executed a general release, the niceties of legal theory may not be employed to support a second recovery in contract for the same injury as against the defendant in this action (see Matter of Parchefsky v. ICroll Bros., 267 X. Y. 410; Gavin v. Malherbe, 264 N. Y. 403; Milks v. Mclver, 264 N. Y. 267; Dahlstrom v. Gemunder, 198 N. Y. 449; Lord v. Tiffany, 98 X. Y. 412, and Rector of St. James Church v. City of New York, 261 App. Div. 614). Present — Peck-, P. J., Callahan, Van Voorhis and Breitel, JJ.