We vote to affirm that portion of the order which dismissed the affirmative defense of Statute of Limitations, but otherwise dissent and vote to reverse that portion of the order appealed from which refused to permit the interposition of the affirmative defense of general release.
In 1966, the plaintiff, who was then 10 years of age, was a passenger in an automobile operated by his mother and owned by his absent father. The car collided with a truck at an uncontrolled intersection in Queens County. The Krichmar car was on the right, and, all things being equal, had the legal right of way.
Both the mother and the child were injured. A suit which was commenced against the owner and the operator of the truck was settled in 1968. Mrs. Krichmar received $20,000 and the plaintiff $40,000, importing a $50,000/$100,000 insurance policy. Medical and hospital bills to the extent of $2,000 were also paid on behalf of the infant and his mother by the parents’ insurance carrier.
The infant plaintiff was seriously injured. He suffered, among other complaints, a fractured skull. The consequences cf his injury were known, or should have been known, to the parents at the time of the settlement, inasmuch as they had the services of a qualified neurologist for their son from the very date of the accident.
On May 16, 1968, a compromise order settling the infant’s claim was signed at the Special Term. A general release running from the Krichmar adults, on behalf of the infant, was duly executed and delivered to effectuate the settlement. There was no reservation of rights in the general release. At that time the release of one joint tort-feasor acted as a discharge of all others allegedly liable for the same injuries (Milks v McIver, 264 NY 267; Metropolitan Dry Cleaning Mach. Co. v Hirsch, 38 AD2d 558; Williams v Pitts, 40 AD2d 1057). Since then, effective September 1, 1972, section 15-108 of the General Obligations Law has changed that rule, but it *523is not retrospective in its application (Jordan v Westhill Cent. School Dist., 42 AD2d 1043).
Prior to 1969, an unemancipated child could not successfully sue a parent for nonwillful tort (see Sorrentino v Sorrentino, 248 NY 626; Cannon v Cannon, 287 NY 425; Badigian v Badigian, 9 NY2d 472). In that year, Gelbman v Gelbman (23 NY2d 434) abolished this immunity. The court there said (p 439): "By abolishing the defense of intrafamily tort immunity for nonwillful torts, we are not creating liability where none previously existed. Rather, we are permitting recovery, previously denied, after the liability has been established. We, therefore, conclude that the present decision should be applied retrospectively to matters which have not gone to final judgment”.
CPLR 1207 makes provision for the settlement of infants’ claims. So far as is here pertinent, it reads: "Upon motion of a * * * parent having legal custody of an infant * * * the court may order settlement of any action commenced by or on behalf of the infant * * *. An order on such a motion shall have the effect of a judgment.”
CPLR 105 (subd [k]) defines the word "judgment” as: "Judgment. The word 'judgment’ means a final or interlocutory judgment” (see, also, CPLR 5011).
Obviously, when the order of compromise was issued, it was meant to be a "final” and not an "interlocutory” judgment. Therefore, under the holding in Gelbman (supra), the order of compromise, coupled with the absolute general release, constituted a final judgment.
Despite the finality of the settlement and general release given to the trucking company and its driver, the infant, by attorneys retained by his father, successfully petitioned the Special Term for an order of modification, which order was signed on August 26, 1970. The effect of the order was to permit the infant plaintiff to open up his case so that he could sue both his parents for further recovery beyond the amounts already paid to him.
Thereafter, and on July 11, 1972, Rose Krichmar, the paternal grandmother of the infant, on the application of the same attorneys, was appointed guardian ad litem in order to prosecute the current suit.
The Gelbman case did not spring, as did Minerva, fully armed, from the head of Jupiter. Rather, it was reached by a *524process of erosion. In Sorrentino (supra), a 4-3 decision sustained the now discarded theory, with Cardozo, Ch. J., Crane and Andrews, JJ., in dissent, no opinion having been written by either side. But in Badigian (supra), the powerful dissent of Judge Fuld foreshadowed the conception, gestation and birth of Gelbman as an idea whose time had come. It might just as well have arrived legitimately in the instant case, rather than in the questionable manner in which it has reached this court.
At bar it is of interest to note that when the application to modify the original order of compromise was made, notice was given only to the trucking company and its driver, to both of whom a general release had been given two years before. They no longer had any interest in the case and so defaulted. Yet, in Gelbman, the court made the observation (p 438) that: "The present litigation is, in reality, between the parent passenger and her insurance carrier.”
Substitute the words "infant passenger” and it is our case. However, no attempt was made to alert the insurance carrier to the modification application. It is thus manifestly unfair to say that it defaulted and that the law of the case had been established, thus estopping it from attacking the modification order of August, 1970.
For the reasons stated, we think the defendants should be permitted to plead the affirmative defense of general release as a bar to the action.
Hopkins, Acting P. J., and Brennan, J., concur with Shapiro, J.; Cohalan and Munder, JJ., concur as to the striking of the defense of Statute of Limitations, but otherwise dissent and vote to sustain the defense of general release, with an opinion.
Order of the Supreme Court, Rockland County, dated May 20,1974, affirmed insofar as appealed from, with $20 costs and disbursements.