Malvica v. Blumenfeld

Order affirmed, without costs. The case is governed by Milks v. McIver (264 N. Y. 267), the release having been given without reservation at a time when the fact of aggravation of the injury by malpractice was fully known, as the Appellate Division held, and thus is without the ambit of Derby v. Prewitt (12 N Y 2d 100). Contrary to appellant’s contention, section 15-105 of the General Obligations Law (formerly Debtor and Creditor Law, § 235) is not applicable. (See Rector of St. James Church v. Cty of New York, 261 App. Div. 614; contra, Berlow v. New York State Thruway Auth., 35 A D 2d 356.) Indeed, the same contention was argued and implicitly rejected in Rapp v. Myers (291 N. Y. 709). Concur: Chief Judge Fuld and Judges Scileppi, Bergan, Jasen and Gibson. Judges Burke and Breitel concur on constraint of Milks v. McIver (264 N. Y. 267).