
    
       Bridget Walsh, as Administratrix de bonis non, etc., of Michael Walsh, Deceased, Appellant, v. John H. Hanan and Others, Respondents.
    
      jRelease of one tortfeasor, excepting the liability of others — it is in effect a covenant not to sue.
    
    An instrument under seal, executed by a party injured by a tort, in which he releases one of the joint tort feasors from all liability, but reserves therein his right of action against the other joint tort feasors, is not technically a release, but a covenant not to sue, and it does not operate to discharge the joint tort feasors as against whom the right of action is reserved.
    Reargttment of an appeal by the plaintiff, Bridget Walsh, as administratrix de bonis non, etc., of Michael Walsh, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of January, 1900, upon the dismissal of the complaint b'y direction of the court after a trial at the Kings County Trial Term.
    
      Willis B. Dowd, for the appellant.
    
      Jesse W. Johnson, for the respondents.
    
      
       Substituted for Johanna Brogan, as administratrix, etc., of Michael Walsh, deceased, by' an order of the Supreme Court, made at the Kings County Special. Term, dated September 9, 1903.— [Rep.
    
   Jenks, J.:

The judgment must be reversed and a new trial must be granted. Mr. Duncan, the owner of a building, leased the, shop and the basement thereof to Messrs. Hanan, who sublet the basement to Mr. Abramson. • The- plaintiff complained against the Messrs. Hanan in that they negligently and- unlawfully failed to protect steps which afforded access to the basement, so that the intestate fell down the steps to his death. At the close of the whole case the learned trial-court dismissed the complaint, but not alone upon the plea of release hereinafter referred to, and the plaiótiff appealed to this court. We affirmed the judgment, and I wrote for the court. (Brogan v. Hanan, 55 App. Div. 92.)

The defendants pleaded, inter alia, that the plaintiff had released under seal Mr. Duncan, the owner of the premises, from all liability, and read the release in evidence. The plaintiff had reserved therein all rights of action for negligently causing the death of her intestate against the Messrs. Hanan- as lessees, and against all other person or persons in possession and control of the premises at the time of the casualty and prior thereto. We held that the defendants Hanan well pleaded the release in bar, because they were joint tort feasors with the owner of the premises. The many authorities for that proposition are cited in the opinion reported in the 55th Appellate Division Reports. But since our .judgment, the Court of Appeals has decided Gilbert v. Finch (173 N. Y. 455). In the opinion the court, commenting upon a release with a reservation, say : Reservations of this character in releases are not uncommon, and their effect has been the subject of frequent adjudication by the courts. It is quite true that the courts of our sister States have reached different conclusions upon the question, and that a sharp conflict exists in the courts of our own State, as, for instance, Matthews v. Chicopee Mfg. Co. (3 Robt. 712); Commercial Nat. Bank v. Taylor (64 Hun, 499), on one side, and Mitchell v. Allen (25 Hun, 543); Delong v. Curtis (35 Hun, 94), and Brogan, v. Hanan (55 App. Div. 92), upon the other side.” After a long discussion the- opinion concludes: “ Where the release contains no reservation it operates to discharge all the joint tort feasors; but where the instrument expressly reserves the right to pursue the others it is not technically a release, but a covenant not to sue, and they are not discharged. It follows that the release, so-called, did not operate to discharge the defendants.”

Inasmuch as the clash of authorities seems to have been stilled by this decision of our highest court, our former judgment, which was based solely upon the release, must be overruled, and, under the circumstances, we think that a new trial of the issue is required. We do not intend to express any opinion upon the merits of the case aside from the feature of the general release) or in any other way to trammel the action of the court upon the new trial granted.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  