[143 N.Y.S.2d 84] John R. Cummins, and Louis P. Meconi, Plattsburgh, for claimant-appellant.
Jacob K. Javits, Atty. Gen., for defendant-respondent (Henry S. Manley, Sol. Gen., Albany, and Sidney Kelly, Jr., Asst. Atty. Gen., of counsel).
Before BERGAN, J. P., and COON, HALPERN and ZELLER, JJ.
BERGAN, Justice Presiding.
Claimant was injured while riding on a State highway in a vehicle driven by her husband. In the course of trial in the Court of Claims in which the only negligence leading to the occurrence of the accident set forth in a pleading was the negligence of the State, a general release in favor of claimant's husband was offered in evidence by the State.
After taking proof of the facts surrounding the execution of the release, the court received the instrument as an exhibit in evidence over the claimant's objection; and although a full record was made on merits of the claim, it was dismissed solely on the ground that the release of claimant's husband as a joint tort-feasor operated also to release the State.
The claimant did not ask by way of relief that as between claimant and the State the release by deemed void; and there is no relief sought, or, indeed, possible in the action, between the direct parties to the release, the claimant and her husband, to set aside or rescind the release. The [143 N.Y.S.2d 85] State did not file any pleading asking for affirmative relief, and the question of the validity of the release was tried between these parties as an incident to the objection raised when the instrument was offered in evidence by the State.
Claimant was not required to plead in her claim that the instrument between herself and her husband was void. Bard-Parker Co., Inc., v. Dictograph Products Co., Inc., 258 A.D. 638, 17 N.Y.S.2d 588; McPeck v. McCarthy, 192 Misc. 767, 81 N.Y.S.2d 317; and a release given to a third party as joint tort-feasor is usually a matter of affirmative defense to be pleaded. Curran v. Matson, 177 Misc. 861, 32 N.Y.S.2d 12. The State is not, however, required to answer a claim, Rule 13, Rules of Court of Claims, and the practical procedure adopted by the parties on the trial was to meet the issue of the validity of the release on the incidental question of its admissibility as an exhibit.
It would, of course, be necessary to go further than this, where the release did not go to the State itself, to show that the third party named in the release was a joint tort-feasor. There is no finding on this question by the court, or discussion of it in
the memorandum of decision; and although the claim of the husband was tried together with the wife's and the husband's claim was dismissed on the merits, the dismissal could have been based on his failure to meet the burden of proof he had in the claim of showing affirmatively his own freedom from contributory negligence; rather than an affirmative showing the other way that he was actively negligent, which is quite a different thing. This was the burden which the State was required to meet in the wife's case in order to establish that the release, which did not run to the State itself, was given to one who jointly negligent in bringing about claimant's injury.
Assuming, however, that the husband is on this record to be deemed a joint tort-feasor with the State, we think that on the weight of the evidence the claim ought not to have been dismissed because of the release running in favor of the husband. The accident occurred April 9, 1949 and claimant, who was seriously injured, remained in a hospital until May 29 when she was sent to her home. The release was signed a few day later while claimant was in bed with her leg in a cast and suffering an injury to her eye. From a conversation with her husband she understood the instrument she was asked to sign was designed to protect his motor vehicle license. She did not read the instrument and said that because of the eye injury she did not attempt to read it; and that the instrument was not read to her by her husband.
She testified that he told her where to sign and that she signed without knowing what she signed. Her husband testified that he did not read the paper to claimant; that he asked her to sign it, and when asked if he explained it to her he testified: 'Well, yes and no. I mean, I told [143 N.Y.S.2d 86] her it was in reference to my license. I was under the impression that that paper there would save my license for me. * * * I told her it was for my license.' This certainly was not a fair explanation of a paper which claimant neither read nor had read to her and which could seriously affect her right to compensation for serious injury.
The confidential relationship of the parties to this release, carrying with it trust and mutual reliance, is such that between the parties to it it would almost certainly be set aside if disavowed by the wife. This is not a case of dealing at arm's length between adverse and hostile parties. The husband testified he gave nothing in the way of ...