This action was brought to recover damages' sustained by the plaintiff, by reason, as he claims, of the negligence of the defend*267•ant in the operation of one of its trains on or about July 16, 1896. It is alleged in the complaint that while the plaintiff with a horse .and wagon was attempting to cross the defendant’s track at a highway crossing, a train of defendant, coming at a dangerous rate of -speed and without warning, ran upon and over the plaintiff and his horse and wagon, killing the horse, injuring the wagon and inflicting upon the plaintiff himself serious and permanent injuries upon the head and back, by reason of which losses and injuries and the -expense incidental thereto, the plaintiff has suffered damage in the •sum of $10,000. The defendant, in its answer, among other things, .sets up that on or about the 10th of April, 1897, the plaintiff, in ■•consideration of the sum of $200 to him paid by defendant, executed and delivered'to defendant a release.of all claims he had against it ..and particularly for any personal injuries and damage to personal property sustained at the collision referred to. The plaintiff, in reply to this, admitted on information and belief that he made and -executed a release in the terms and substance the same as set forth in the answer, and alleged that at the time it was executed he was suffering great bodily pain and was in such condition of mind that he was incompetent to appreciate the character of the instrument; that if he did execute a release of the cause of action alleged in •the complaint, the- same was obtained from him by deceit and misrepresentation while lie was too enfeebled and incapacitated to prop- ■ erly understand the effect and meaning of the instrument he signed, .and that he never intended to execute a release to the defendant for his personal injuries.
The case was brought on for trial before the court and a jury. After the opening of the case by the counsel for the plaintiff, the counsel for the defendant moved upon the opening and on the pleadings to dismiss the complaint upon the ground that there was no allegation that the money received as consideration for the release .had been restored or offered to be restored.
It was stated in the opening, among other things, that the plaintiff -did not know that he was signing a release for his personal inj uries :and that the release was only signed for the horse and wagon, which were worth more than he received; that the plaintiff claimed nothing now for damages on the horse and wagon; that the release ■was obtained by fraud or false representations.
*268The court held that the plaintiff could not recover for his personal injuries without restoring or offering to restore the money he had received, and, therefore, granted the. motion of the defendant for a dismissal, to which ruling the. plaintiff excepted. The court, with a view of giving the plaintiff an opportunity to amend his pleadings if he so desired, gave him the option of arresting the trial on payment of certain costs within a specified time, the court evidently intending to place the plaintiff in a position either to review by appeal, if he so desired, the ruling of the court on the dismissal, or to amend, if he so desired, on terms and offer to restore. The plaintiff did not accept the latter opportunity, but appealed, and the question now is whether the exception of the plaintiff- to the ruling of the court dismissing the case is a good one.
This question must be determined upon the assumption that the facts alleged- by the plaintiff in his pleadings or in the opening are true. (Clews v. New York Nat. Banking Assn., 105 N. Y. 399.) So that the court in' effect held that, although the release was obtained by fraud and the plaintiff only settled for the damages to his horse and wagon and received the money only for such settlement, still that he could not recover for his personal injuries without restoring or offering to restore the money.
There is no doubt about the right of the plaintiff to impeach the release for fraud. (O’Meara v. Brooklyn City R. R. Co., 16 App. Div. 204; Kirchner v. New Nome S. M. Co., 135 N. Y. 182, 189.) The defendant, however, says that the rule that a party seeking to rescind a contract for fraud must first restore or offer to restore what he has received under it, is applicable to this case. The Ki/rchner case, above cited, was an action to recover damages for certain alleged trespasses, and the defendant proved a general release covering the trespasses complained of and other matters connectéd with the same transaction, and it was said (p, 189): “If the plaintiff can show that, by a mutual mistake of the parties, or by what is its equivalent, a mistake on his part and fraud on the part of his adversary, the present cause of. action is embraced in the release, contrary to the intent of the parties, or contrary to his intent in case fraud is proven, he is entitled to an instruction to the jury to the effect that the release does not bar his right to recover.”
The plaintiff, under the reply and the statements in the opening, *269had .the right to show that the contract in fact made between the plaintiff and defendant was not correctly embodied in the release, so that it was not a rescission of the contract that the plaintiff sought, but in effect a reformation of the release. As feaid in the Ki/rohner case (p. 190): “ This is not the case of an attempted rescission of a contract, upon the ground of fraud, and the plaintiff is not, therefore, under any obligation to return what he has received, or to tender restoration. He is not seeking to disaffirm the agreement actually made, but merely objecting to the application of the written evidence of it to a subject which the parties did not intend to include in it. (Wells v. Yates, 44 N. Y. 531.) ”
In Bliss v. N. Y. C. & H. R. R. R. Co. (160 Mass. 447) it was held that “ where one, who has sustained injuries to his clothing and also to his person by a railroad accident, has been induced by fraud to execute to the railroad corporation a receipt in full and a release for both injuries, upon being paid a small sum, which was understood by him to be compensation merely for the injuries to his clothing, he need not return the money so received before bringing an action for the personal injuries.”
But the defendant says that the plaintiff had but one cause of action for all the injuries, though different items for damages, and that a settlement and release for some of the items would bar the whole claim, the same as if there was a suit and recovery for such items. That question was also considered in the Bliss case and a conclusion reached adverse to the contention of defendant. It was said that if one sues to recover for an injury, he may well be held to include in his action all that he is entitled to sue for in respect to that cause of action, hut if one is making a settlement the same reasons do not apply; that if he cannot make a full settlement he may make a partial one and thus eliminate one element out - of the controversy. This view seems to be quite reasonable.
The foregoing considerations lead to the conclusion that the trial court erred in holding that, although the facts were as the the plaintiff claimed them to he, still he could not recover for his personal injuries without restoring the money he had received. The judgment must, therefore, be reversed.
All concurred, except Kellogg and Edwards, JJ., dissenting.