Livant v. Livant

• Decision Date: 23 April 1963
• Citation: 239 N.Y.S.2d 608,18 A.D.2d 383
• Parties: Dora LIVANT and Walter Livant, Plaintiffs-Respondents, v. Irving LIVANT, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 608

239 N.Y.S.2d 608

18 A.D.2d 383

Dora LIVANT and Walter Livant, Plaintiffs-Respondents, v. Irving LIVANT, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 23, 1963.

Marshall D. Sweetbaum, New York City, of counsel (McCarthy & McGrath, New York City,) for defendant-appellant.

Eugene H. Lieber, Brooklyn, of counsel (Guminick & Lieber, Brooklyn,) for plaintiffs-respondents.

Before BREITEL, J. P., and RABIN, STEVENS, STEUER and BASTOW, JJ.

BREITEL, Justice Presiding.

Defendant Irving Livant appeals from an order denying his motion for leave to plead an affirmative partial defense in mitigation of damages. The defense is based on a payment made by a former co-defendant on account of that defendant's judgment liability to each of the plaintiffs.

The action was brought to recover damages for personal injury based upon the concurrent negligence of the defendants. The accident arose from a collision between automobiles, one operated by defendant Irving Livant and the other by the former defendant Adams who made payment on his liability after judgment. Plaintiffs were passengers in the Livant Automobile. Leave to plead the affirmative defense by an additional and supplemental pleading was necessary, because the payment had been made after a prior trial in this action. Only defendant Irving Livant had appealed from the verdict and judgment in favor of plaintiffs. Special Term denied the motion on condition that plaintiffs agree that any verdict subsequently returned against defendant Irving Livant should be reduced by credits for the amounts previously paid by the former defendant Adams.

Payments by a joint tortfeasor on account of his liability reduce pro tanto the amount of damages recoverable by an injured plaintiff against other joint tortfeasors (Restatement, Torts, § 885; see, Debtor and Creditor Law, Art. 8). It is therefore a partial defense, by way of mitigation of damages and, in a proper case, may be pleaded and proved. As a consequence, the order should be reversed and leave to serve a supplemental pleading granted.

The prior trial resulted in verdict and judgment against both defendants in the sum of $52,500. Defendant Adams, through his insurance company, paid up to the liability policy limits the sum of $10,000 to each of the two plaintiffs. Notably, it does not appear from the record what is the status of the balance of the judgment, but that the balance has not been satisfied or otherwise discharged (Restatement, Judgments, § 95, incl. Comments; Restatement, Torts, § 886, incl. Comments). On the appeal by defendant Irving Livant, a reversal and new trial was granted (17 A.D.2d 784, 232 N.Y.S.2d 641). Facing a second trial, defendant Irving Livant wishes to serve an amended and supplemental pleading, denominated by him only as an amended one, setting forth such payments in reduction of any claims against him (Civil Practice Act, § 245).

Defendant is entitled to serve the proposed supplemental pleading by virtue of provisions of the Civil Practice Act. Section 262, in pertinent part, provides that:

'A partial defense may be set forth, but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Whether it is sufficient for that purpose presents a question of law, upon seasonable objection taken thereto. Matter tending only to mitigate or reduce damages is a partial defense, within the meaning of this section.' ¹

Section 339, with express reference to proof upon the trial, in pertinent part, provides:

'In an action to recover damages for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defenses to the entire cause of action. * * *'

Moreover, it is the settled decisional rule in this State that payments made by one of several joint tortfeasors to the injured person may be alleged and proved to the jury (Knapp v. Roche, 94 N.Y. 329; Gaetjens v. City of New York, 145 App.Div. 640, 130 N.Y.S. 405; Ammerman v. Utilities Oil Corporation, 222 App.Div. 481, 226 N.Y.S. 673; Bellinger v. Town of Salisbury, 278 App.Div. 631, 102 N.Y.S.2d 385; Sobel v. Levy, 97 Misc. 13, 160 N.Y.S. 1049).

Plaintiffs successfully argued at Special Term that they would be prejudiced if defendant Irving Livant would be able to plead and prove the payment made by the former defendant Adams. They argue that inferences, unfavorable to plaintiffs, might be drawn, either on the question of liability or on the amount of residual damages to which they might be entitled. Depending upon varying circumstances, from case to case, it may be to the tactial advantage either of a plaintiff, or of a defendant, to establish before the jury that there had been a prior settlement or payment by one of several joint tortfeasors in mitigation of damages. On the one hand, such settlement might suggest the genuineness of plaintiffs' claim and, perhaps, the concurrence of responsibility by the other tortfeasors. On the other hand, such settlement or payment might suggest that that plaintiff has received all that he really should and is now merely being greedy. Or, the jury might even think that the tortfeasor, who settled before, was the only wrongdoer, merely because he settled.

In agreeing with plaintiffs' contentions Special Term was influenced by the rule in Illinois. Under this rule the information of prior settlements made by joint tortfeasors, not on trial, is kept from the jury. At the conclusion of the trial, if there is a verdict in favor of plaintiff, the trial court deducts the amount of such settlements from the award (De Lude v. Rimek, 351 Ill.App. 466, 115 N.E.2d 561, 565-566; Jackson v. Hursey, 1 Ill.App.2d 598, 118 N.E.2d 348, 353; Ryan v. Monson, 33 Ill.App.2d 406, 179 N.E.2d 449, 453-454).

The same practice prevails in a number of other jurisdictions (Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, 211-212; Steger v. Egyud, 219 Md. 331, 149 A.2d 762, 764-765; Skyline Cab Company v. Bradley, 325 S.W.2d 176, 181-182 [Tex.Civ.App.]; Cudd v. Great American Insurance Company, 202 F.Supp. 237 [W.D., La.]; cf. State Farm Mutual Automobile Ins. Co. v. Bourne, 220 F.2d 921 [5th Cir., per Hutcheson, J.]. ² Elsewhere, however, the rule, which follows traditional concepts with respect to mitigation of damages as a partial defense to be pleaded and proved, is the same as in New York (Laurenzi v. Vranizan, 25 Cal.2d 806, 155 P.2d 633, 637; Ford Motor Company v. Tomlinson, 229 F.2d 873, 878 [6th Cir.], cert. den. 352 U.S. 826, 77 S.Ct. 38, 1 L.Ed.2d 49; Solomon v. Dabrowski, 295 Mass. 358, 3 N.E.2d 744, 106 A.L.R. 464; Atlantic Coast Line R. Co. v. Ouzts, 82 Ga.App. 36, 60 S.E.2d 770, 783-785; McWhirter v. Otis Elevator Co., 40 F.Supp. 11, 13 [W.D., S.C.]). ²

In the light of the...