Viskovich v. Walsh-Fuller-Slattery

• Decision Date: 06 March 1962
• Docket Number: WALSH-FULLER-SLATTERY
• Citation: 225 N.Y.S.2d 100,16 A.D.2d 67
• Parties: Thomas G. VISKOVICH, Plaintiff-Respondent, v., a joint venture, and Triborough Bridge & Tunnel Authority, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 100

225 N.Y.S.2d 100

16 A.D.2d 67

Thomas G. VISKOVICH, Plaintiff-Respondent, v. WALSH-FULLER-SLATTERY, a joint venture, and Triborough Bridge & Tunnel Authority, Defendants-Appellants.

Supreme Court, Appellate Division, First Department.

March 6, 1962.

James M. Gilleran, New York City, of counsel (John J. O'Connor, New York City, attorney), for defendants-appellants.

Thomas E. Paterson, New York City, of counsel (John J. Corcoran, New York City, attorney), for plaintiff-respondent.

Before BREITEL, J. P., and VALENTE, STEVENS, STEUER and BERGAN, JJ.

STEVENS, Justice.

This is an appeal from an order entered October 30, 1961, which directed the striking of the affirmative defense of release after that defense had been tried separately before a jury.

Plaintiff, an asbestos worker, was injured October 10, 1955, when he fell from a scaffold while working on a construction job. Plaintiff struck his back on a concrete floor. He sought medical treatment and two days later retained an experienced attorney to represent him in a claim for damages for personal injuries. These injuries were diagnosed by plaintiff's physician as 'multiple bruises and abrasions, both lower legs and back, sacroiliac sprain, bilateral, sprain of right schoulder joint and shock.' X rays taken shortly after the accident were negative for fractures or dislocations.

The claim was settled upon payment of $1,000 and payment of a lien in excess of $100. A general release dated May 14, 1956, was executed by the plaintiff. Up to that date plaintiff had lost approximately one work week because of the injuries.

When plaintiff returned to work about one week after the accident he worked steadily until sometime in 1958. Then, because of leg and back pains, which apparently began in late 1957, plaintiff sought medical advice and treatment. It was discovered that plaintiff suffered from a herniated disk for which he underwent corrective or curative surgery.

Thereafter the present action was instituted for the recovery of damages for personal injuries, the plaintiff alleging the herniated disk was caused by the accident of October 10, 1955. These defendants, while not the parties against whom the 1955 claim was made, were in the position of joint tort-feasors and plead as an affirmative defense the general release executed May 14, 1956.

By order of the court the issue created by the affirmative defense of release was severed and tried separately prior to the trial of any other issues. The plaintiff at the trial of the issue claimed mutual mistake. The jury found in favor of the plaintiff, and it is from the order thereafter entered, striking the defense of release, that the defendants appeal.

The defendants-appellants assert the general release is a bar to this action because there is no claim of fraud, misrepresentation or overreaching, and the release was fairly and knowingly made.

Plaintiff-respondent asserts there was a mutual mistake in the execution of the release because the state of facts assumed to exist at the time of settlement did not, in fact, exist.

The theory of mutual mistake, when acted upon by the courts in refusing to give full effect to a general release, is based upon a determination or conclusion that the minds of the parties failed to meet in agreement upon the essential elements of the instrument. Yehle v. New York Central R. R. Co., 267 App.Div. 301, 46 N.Y.S.2d 5, aff'd 295 N.Y. 874, 67 N.E.2d 516. In such cases the courts say the release, though general in terms, was only intended to be a release of injuries known to the plaintiff at the time of settlement or execution. Barry v. Lewis, 259 App.Div. 496, 20 N.Y.S.2d 88; Farrington v. Harlem Savings Bank, 280 N.Y. 1, 19 N.E.2d 657. In Barry v. Lewis there was a mistake of fact in that both parties at the time the release was signed were unaware that plaintiff suffered injuries other than superficial bruises. Moreover, no claim had been or was intended to be filed. In Farrington v. Harlem Savings Bank, supra, the instrument was executed four days after the accident. It was signed by the plaintiff while he was waiting on customers in a store and when, according to his testimony, he did not read it and it was represented to him to be a receipt.

As was pointed out in Yehle v. New York Central R. R. Co., supra, 267 App.Div. pp. 310-311, 46 N.Y.S.2d p. 13, '[a]n examination of these cases [where a release has been held not binding] shows that there was present in the...