
    (86 Hun, 63.)
    WALBOURN v. HINGSTEN.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    Release and Dischaege—Binding Effect—Pleading and Pboof.
    Where an answer alleged that plaintiff, before the action was brought, released all causes of action which he might have against defendant, including the cause of action sued on, a reply that such release related to a certain cause of action other than the one in suit, of which plaintiff was ignorant at the time, is not sufficient to limit the legal effect of the release, since plaintiff, for that purpose, must show either mutual mistake, or mistake on his part and fraud on the part of defendant.
    Appeal from special term, Erie county.
    Action by Henry Walbourn against Edward J. Hingsten. From an interlocutory judgment overruling a demurrer to the reply to new matter contained in the answer, defendant appeals.
    Reversed.
    The alleged cause of action is criminal conversation of the defendant with plaintiff’s wife in the spring and summer of 1891. The new matter alleged in the answer is that in April, 1892, the plaintiff received from the defendant the sum of $500 in full satisfaction and discharge, among other things, of the damages mentioned and alleged in the complaint, and thereupon delivered to the defendant a release in writing made and executed by him, whereby, in consideration of the said sum of $500, the plaintiff remised, released. and discharged the defendant “of and from all and all manner of action or actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, events, executions, claims, and demands whatsoever, in law or in equity, which against the defendant the plaintiff ever then had, or which he, or his heirs, executors, or administrators, thereafter could, should, or may have for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of said release.'* The plaintiff, being required by order of the court to reply to such new matter, alleged by way of such reply that in October, 1890, an agreement, set forth, was made between him and the defendant, and “that because of a disagreement over it and its terms the plaintiff and the defendant had a dispute, and growing out of the same, and solely relating thereto, the release set forth in answer of the defendant was executed, and the money so paid thereunder was paid and received only on and for damages or dues due from said Hingsten upon and relating to said contract, and in no way related to the matters set forth in the complaint”; and that at the time of signing said release the “plaintiff had no knowledge of the wrongful acts alleged against the defendant in his complaint, and therefore could not have tried to settle his alleged claims as claimed in the defendant’s answer; and he therefore denies each and every allegation of the defendant as set forth under the third clause of the answer, excepting as explained hereinbefore.” The defendant interposed a general demurrer to the reply.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    Henry B. Loveland, for appellant.
    Edward L. Jellinek, for respondent.
   BRADLEY, J.

The plaintiff does not controvert the fact that he made the release set forth in the answer, but alleges that it was not intended to and did not embrace the matters constituting the cause of action charged in the complaint, and that it was made in reference solely to a certain other matter about which a controversy had arisen between the parties. Those allegations of the reply relate not to the terms of the instrument, but to its purpose and effect. And in support of the assertion in that respect the plaintiff alleges that when it was made he was ignorant of the matters which constitute the subject of the cause of action set forth in his complaint. This alone is not sufficient to qualify the release or limit its terms and legal effect. The right to do so by oral evidence is dependent upon the charge of mutual mistake of the parties to the instrument in making and taking it, or fraud°on the part of the defendant and mistake on the part of the plaintiff. Kirchner v. Sewing Mach. Co., 135 N. Y. 182, 31 N. E. 1101. The same facts w'hich could be proved to reform it may be available to limit its effect to a like extent as would the reformation if made. In the present case the plaintiff was, pursuant to the statute, put to his reply to the new matter in the answer. Code Civ. Proc. § 516. He did so. The question presented by the demurrer is one of pleading. And for the support of his reply it was necessary for the plaintiff to allege all the facts essential to overcome wholly or partially the effect which the terms of the release set up in the answer fairly import. This the plaintiff failed to do, as he neither alleged facts to the effect that it was made in terms so broad and comprehensive as to include the cause of action alleged in the complaint by mutual mistake of the parties to it, or by reason of any fraud on the part of the defendant. It is true that the plaintiff alleged in his reply that the release was made on settlement of a matter of dispute between the parties arising out of a certain agreement into which they had previously entered, and in reference to that controversy only, and that the plaintiff was then ignorant of the facts upon which this action is founded. It is not competent by oral evidence of such facts merely to contradict, qualify, or limit the terms of the release. This was sought to be done in Kirchner v. Sewing Mach. Co., and the view of the general term that it was permissible (59 Hun, 186, 13 N. Y. Supp. 173) was disapproved by the court of appeals, where it was said: “The operation of such an instrument cannot be made to depend upon oral testimony as to knowledge of the creditor, when he executed it, of the liability which he subsequently seeks to enforce.” 135 N. Y. 188, 31 N. E. 1101. Such is the general rule as between parties to written instruments, in the absence of mutual mistake or fraud. In Noble v. Kelly, 40 N. Y. 415, the release was by construction held to have been so limited in its terms as not to embrace the entire subject of the action. And in Rosboro v. Peck, 48 Barb. 92, the question had relation to the consideration expressed in the release. This, as such, is always open to explanation by parol. McCrea v. Purmort, 16 Wend. 460. It is unnecessary now to inquire how far and with what effect the facts stated in the reply would be admissible, if mutual mistake or fraud were alleged. As the reply charges neither, no effectual issue is tendered by it. The judgment should be reversed, with leave to the plaintiff to amend his reply on payment of costs of the demurrer and of this appeal. All concur.  