Schoenbaum v. Reimer

184 A.D. 944

Opinion

Per Curiam:

The issue related to the release involves the same questions, save that of damages, as are triable by jury. The disposition of such issue by the court would deprive the plaintiffs of the trial by jury to which they are entitled. In actions involving negligence, the issue concerning the release of the cause of action is separable from the cause of action itself, and should be determined by the court; but it is not so where, as in this instance, the court, in finding whether the fraud existed, would necessarily determine whether plaintiffs had knowledge of it, thereby creating an estoppel save in the matter of damages. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, without costs. Jenks, P. J., Thomas, Mills, Kelly and Jaycox, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.