Marcia Linker, as Administratrix, etc., of Moses Linker, Deceased, Respondent, v. William A. Jamison and Others, Copartners Doing Business under the Firm Name and Style of Arbuckle Bros., Appellants

Marcia Linker, as Administratrix, etc., of Moses Linker, Deceased, Respondent, v. William A. Jamison and Others, Copartners Doing Business under the Firm Name and Style of Arbuckle Bros., Appellants. Second Department, June 9, 1916. Practice — action for negligence — defense of general release — prior and separate trial of issues. Where, in answer to an action brought to recover for death caused by negligence, the defendant sets up a general release, to which the plaintiff makes no reply, the plaintiff at trial may meet the defense by traverse or avoidance as the case requires—that is to say, may offer evidence to avoid the release on equitable grounds. But the defendant has a right to have a separate and prior trial of the issues raised by the defense of the general release pleaded by it. Appeal by the defendants, William A. Jamison and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1916, denying their motion for a separate and prior trial of the issues raised by the defense of a general release pleaded herein. Gaylord B. Van Kirk [Amos II. Stephens with him on the brief], for the appellants. Anthony J. Ernest [Martin T. Mantón with him on the brief], for the respondent. [MAJORITY — Carr, J.:] Carr, J.: This is an action to recover damages for the death of plain - tiff’s decedent through the alleged negligence of the defendants. The defendants set up a general release made by the decedent after the accident and before his death. The plaintiff served no reply, and the defendants made no application to the court to compel the service of a reply. As the case stood when the trial was reached the plaintiff might meet the defense of a general release by “ traverse or avoidance as the case requires.” (Code Civ. Proc. § 522.) In other words, she could offer evidence to avoid the release on equitable grounds. (Davis Confectionery Co., Inc., v. Rochester G. Ins. Co., 141 App. Div. 909; Mandeville v. Reynolds, 68 N. Y. 528; Arthur v. Homestead Fire Ins. Co., 78 id. 462; Keeler v. Keeler, 102 id. 30.) The defendants moved for a separate trial of the issue as to the general release. The motion was denied and the defendants appeal. This court has repeatedly declared the policy that under such circumstances, where the plaintiff seeks to avoid a general release pleaded by the defendant, the court at Special Term should direct a separate trial of the issues as to the general release. (Warner v. Star Co., 162 App. Div. 458; Arbutina v. Pittsburg Contracting Co., 168 id. 280; Piuntkosky v. Harrington’s Sons Co., 167 id. 117.) The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the motion of the defendants should be granted, without costs. Jerks, P. J., Thomas, Mills and Rich, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and defendants’ motion granted, without costs.