Oliver v. Washburn , 362 N.Y.S.2d 91 ( 1974 )

Appeal from an order of the Supreme Court at Special Term, entered February 15, 1973 in Washington County, which denied defendant’s and third-party defendant’s motions to dismiss plaintiffs’ complaint. Action was commenced against the Village of Hudson Falls and Emerson J. Washburn for damages sustained by Albert Oliver and his wife, Marie Oliver, when the vehicle in which he was riding as a passenger collided with a truck owned and operated by Washburn at an intersection in that village. Thereafter, the village and Washburn commenced a third-party action against the operator of Oliver’s vehicle, one George H. Camp, Jr., who pleaded a defense of general release and moved to dismiss plaintiffs’ complaint at the time of Washburn’s motion to amend his answer to include that defense and dismiss the action against Washburn. The denial of those motions produced this appeal. The release in favor of Camp was executed by Albert and Marie Oliver on April 12, 1972 and was general in form without any reservation of rights against others. Therefore, its effect remains unchanged by the subsequent amendment of section 15-108 of the General Obligations Law (Jordan v. Westhill Cent. School Dist., 42 A D 2d 1043) and, under controlling case law, it provides a complete defense to these defendants (cf. Berlow v. New York State Thruway Auth., 29 N Y 2d 949; Mdlvica v. Blumenfeld, 28 N Y 2d 851; Derby v. Prewitt, 12 N Y 2d 100; Williams v. Pitts, 40 A D 2d 1057). There is no proof of mutual mistake in understanding the nature of the release or the extent of plaintiff’s injuries sufficient to warrant the granting of the order appealed from and the complaint should have been dismissed. Order reversed, on the law and the facts, and complaint dismissed, without costs. Greenblott, J. P., Cooke, Sweeney, Kane and Reynolds, JJ., concur.