Fitch v. Central Greyhound Lines, Inc. , 122 N.Y.S.2d 862 ( 1953 )

Separate appeals by defendants from an order of the Supreme Court, Cortland County, entered in each action denying motions to dismiss the complaint. Plaintiffs sue in negligence. Defendants moved at Special Term for dismissal in pursuance of rule 107 on the ground the causes of action pleaded had been released. The motion was denied. Attached to the moving papers are exhibits purported to have been signed by the plaintiffs who are husband and wife, each releasing all defendants for a stated consideration. Each plaintiff denies under oath “having ever made or executed a release to ” the two principal defendants and “ that therefore ” each release referred to in the moving papers “ is wholly without foundation of fact and is totally false and untrue.” These broad denials, however, seem addressed to plaintiffs’ main contention that the instruments signed by them were signed as a result of misrepresentations of fact. Whether the plaintiffs are bound by the releases relied upon by defendants in the motions to dismiss is a question which on the record presented here ought not to be decided on affidavits. We think, however, that the issue ought to be tried first before the main causes of action of plaintiffs are heard (Burton v. Niagara Mohawk Power Corp., 280 App. Div. 356). If and when the defenses of release are pleaded, the application for separate trial may be addressed to the Trial Term. Orders unanimously affirmed, with one bill of $10 costs and disbursements. Present- — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.