Opinion
December 29, 1955
Action to recover damages for personal injuries alleged to have been sustained by appellant when respondents' motor vehicle collided with defendants' taxicab, in which appellant was a passenger. The appeals are from an order granting respondents' motion for summary judgment and severing the action against respondents, and from the judgment entered thereon. The motion was made on the ground that the defense of release pleaded by respondents is a complete bar to the action. Order and judgment reversed, with $10 costs and disbursements, and motion denied, with $10 costs. The validity of the release pleaded by respondents was put in issue by appellant's reply. Whether the release was "fairly and knowingly made" is a question for the trier of the facts. ( Farrington v. Harlem Sav. Bank, 280 N.Y. 1; Le Francois v. Hobart Coll., 31 N.Y.S.2d 200, affd. 262 App. Div. 802, affd. 287 N.Y. 638; Barry v. Lewis, 259 App. Div. 496. ) The failure to tender the benefits received before commencing the action is not fatal to the complaint. (Civ. Prac. Act, § 112-g; Ploof v. Somers, 282 App. Div. 798; Shontell v. Glens Falls Ins. Co., 282 App. Div. 965; Ciletti v. Union Pacific R.R. Co., 196 F.2d 50.) In any event, upon argument of the motion herein an offer to return the benefits received was made. MacCrate, Beldock, Murphy and Ughetta, JJ., concur; Wenzel, Acting P.J., dissents and votes to affirm.