The majority of this court would by their decision discard the long-standing and well-established rule that a general release of one tort-feasor without reservation creates a bar to an action for damages against another tortfeasor, arising from the same injury (Milks v. McIver, 264 N. Y. 267). I cannot concur in this action. First, I cannot agree that the provisions of article 15 of the General Obligations Law mandate such a result. The Court of Appeals has not indicated that such a construction be given to article 15 despite the fact that this legislation has been part of our statutory law since 1928 (former Debtor and Creditor Law, §§ 231-235; L. 1928, ch. 833) some six years before the decision in Milks v. McIver (supra). Nor does the Court of Appeals even mention this legislation in its decision in Derby v. Prewitt (12 N Y 2d 100). Moreover, the Second Department, the only appellate court in this State to meet this issue, has directly ruled that *362these sections are inapplicable ‘ ‘ where the damages arising out of tort are unliquidated and the release contains no reservation (Rector, etc., of St. James Church v. City of New York, 261 App. Div. 614, 617; see, also, Rushford v. United States, 92 F. Supp. 874.) Nor can I agree with the position that the judicial trend in this State portends the overruling of this well-established principle. The Court of Appeals chose not to do so in Derby v. Prewitt (supra) (see, also, Lucio v. Curran, 2 N Y 2d 157) and instead carefully distinguished the facts so as not to confront the rule directly. And I fail to understand the compelling urgency to effect the demise of such a well-established rule since every practitioner should unquestionably be aware of it and its application can be so easily voided by including a reservation in the release. Accordingly, I vote to affirm the order of dismissal of the Court of Claims.
Cooke and Sweeney, JJ., concur with Herlihy, P. J.; Greenblott, J., concurs in a separate opinion; Reynolds, J., dissents and votes to affirm in an opinion.
Orders reversed, on the law and the facts, and motions denied, with costs.