It is conclusively established by the evidence that the accident which is the subject of this action resulted because of the joint negligence of the Erie Railroad Company and of this defendant; that they are joint tort feasors; that prior to the commencement of this action the plaintiff commenced an action against the Erie Railroad Company to recover the damages sustained by him resulting from such accident, and that in his complaint in such action he alleged, in substance, that his said injuries were due solely by reason of the carelessness and negligence of the Erie Railroad Company and its agents in charge of said locomotive, engine, etc.; that before the trial of this action he settled said cause of action against the Erie Railroad Company and received upon such settlement the sum of $7,000.
In the case at bar the plaintiff by his evidence proved the commencement by him of the action against the Erie Railroad Company upon a complaint which alleged, in substance, that the Erie Railroad Company was alone responsible for the damages sustained by him. He also proved that such action or cause of action against the Erie Railroad Company was settled by him before the trial of this action, and that upon such settlement he received the sum of $7,000 ; but lie did not put in evidence or make proof with reference to the release, if any, given by him to the Erie Railroad Company, or the nature or scope of the settlement so made by him. He gave no evidence tending to show that the sum of $7,000 paid to *6him was not received in full settlement of his cause of action. The defendant gave no evidence upon that branch of the case but stood upon .the proposition as stated by the plaintiff, unequivocally, that he had settled the action brought by him against the Erie Bailroad Company to recover the damages resulting from the accident in question, which, as stated in his complaint in the action brought against the Erie Bailroad Company,' resulted solely through the negligence of that company, and that he had received upon such settlement.the sum of $7,000. The defendant moved for a nonsuit and for the direction of a verdict upon the ground, among others, that the plaintiff had settled his cause of action with the Erie Bail-road Company, which motion was denied.
Upon the evidence thus adduced, given by the plaintiff himself, and because of his failure to disclose the exact nature of the settlement which he had testified to, assuming that it was more favorable to him than was indicated by his evidence, we think it should be conclusively presumed that the settlement made by him with the Erie Bailroad Company was in full payment for the damages resulting from the injuries which he sustained, and, if so, then he settled his cause of action against this defendant, it concededly being a joint tort feasor with the Erie Bailroad Company..
We think it ought not to be held upon the evidence in. this case, which is uncontradicted so far as this question is concerned, that the plaintiff, in the settlement made with the Erie Bailroad Company, reserved the right to prosecute an action against this defendant for exactly the same cause of action.
The plaintiff gave evidence tending to show that the negligence which resulted in injury to him was the joint negligence of this defendant and of the Erie Bailroad Company, and that the Erie Bailroad Company settled the alleged cause of action against it for the sum of $7,000, and it seems to me that it should be conclusively presumed, nothing appearing to the contrary, that such settlement was in full satisfaction and payment for plaintiff’s damages. If it was a restricted settlement and such as reserved to the plaintiff the right to prosecute an action against the defendant, whose negligence in conjunction with that of the Erie Bailroad Company caused the accident, it would have been easy for the plaintiff to have established such fact, and we think it was incumbent upon *7him, having proved a settlement, if there were any limitations, to prove the same.
In the proper administration of justice in cases of this kind we think it ought not to be held that it is permissible for the plaintiff x to prove that one joint tort feasor has recognized its liability and paid $7,000 in settlement of such liability, which according to the complaint in the action brought against it resulted solely through its negligence, and then to recover damages against the other joint tort feasor without disclosing the nature of the settlement made in the first action.
We think in this case it was not incumbent upon the defendant to seek to prove that the settlement made between the plaintiff and the Erie Railroad Company did not reserve the right to the plaintiff to maintain an action against this defendant. It seems to me it -ought to be held as a conclusive presumption that in a case such as this, to recover damages for injuries sustained by the plaintiff as the result of the joint negligence of two corporations, where an action is brought against one, the complaint in which action alleging that the injuries resulted solely through the negligence of such defendant, in order to entitle the plaintiff to recover against the other defendant, after he has testified that he settled his cause of action with the former, it "should be incumbent upon him to establish that there was some reservation in such settlement which left him free to prosecute the other joint tort feasor.
For these reasons I conclude that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.
Williams, J., concurred.
Judgment and order affirmed, with costs.