117 N.Y.S. 601 | N.Y. App. Div. | 1909
On or about October 17, 1900, the plaintiff, while in the service of the defendant at Spier’s Falls, received severe and permanent personal in juries. He was taken to a hospital in Glens Falls and was there visited by Mr. Pedrick, the auditor of the defendant company and the manager of its works at Spier’s Falls. He inquired of plaintiff if he
It is first insisted that Pedrick had no authority to bind the defendant by the oral agreement sought to be enforced herein. He was the. auditor of the defendant and it is undisputed that he was authorized by its president to settle the alleged cause of action for $250. . But it is claimed that in - making the additional agreement to support and maintain the plaintiff he exceeded his authority. Considerable amounts were in fact paid by- defendant apparently in tlie partial execution of such agreement of its auditor. Defendant had no right to expend its corporate funds gratuitously, aiid we can scarcely indulge in the presumption that such was its motive in making those payments particularly in view of plaintiff's testimony that he had an agreement whereby they were to be made. There are in evidence letters from the defendant to the plaintiff in answer to his letters directed to the defendant itself relative to his removal from the New York hospital to Glens Falls at the expense of the defendant-, which letters of the defendant quite clearly indicate that such removal was effected by it, not as -a gratuity, but in recognition of a duty which it owed to the plaintiff. The defendant authorized Pedrick to settle the claim and the latter
Another ground urged for sustaining the dismissal of the complaint is that the release represents the entire agreement, and that the evidence that defendant agreed to maintain and take care of the plaintiff is inconsistent with such release and contradicts and varies the effect of a written instrument. The release does not represent the entire agreement between the parties, but merely that part which plaintiff agreed to do. It was a part of the agreement that plaintiff should release his cause qf action for negligence. He executed the release in question in performance of his agreement. It was in consideration of that agreement performed by him that defendant agreed to pay $250 and in addition thereto to support the plaintiff during his infirmity.
In Andrews v. Brewster (124 N. Y. 433) the defendant’s testator had been charged by plaintiff with negligence in failing to rent certain real estate belonging to an estate of which, the former was executor and in which plaintiff' was interested. An oral agreement was made between the executor and the plaintiff whereby the former paid to the latter the amount, of her interest in the real estate and promised to leave her by will a specified portion of his own estate, and plaintiff thereupon executed to the executor a conveyance of her interest in the real estate and also a release of all claims which she held against him. The latter having failed to make provision in his will as agreed an action was brought against his executors on such oral agreement. The court said: “ The release did destroy and discharge the testator from all claim
Wenz v. Meyersohn (59 App. Div. 130). was a case wdiere the defendants agreed that if the plaintiff would settle a foreclosure ■action for eleven hundred dollars and execute a general release they would pay plaintiff thirty dollars additional. Plaintiff executed the release and defendants thereafter refused to pay the thirty' dollars. It was held that the thirty dollars was part of the consideration for the release, the court saying: “ The complication is'due to the fact that the plaintiff, instead of tendering the release with one hand and holding out the other for the entire' consideration, trusted the defendants for the payment of the thirty dollars — gave them credit therefor. Upon default by them she was entitled to sue to enforce that payment. (Szymanski v. Chapman, 45 App. Div. 369, 371.) The parol testimony is not objectionable as altering or modifying"the release, for it but tended to establish that the full consideration therefor was not paid, and did not afféct the force of the release.”
■ In the SzymansM case, cited in the last quotation, a release had been executed by an employee: to his employers of a cause of action for personal injuries sustained through their alleged negligence and
Applying the principle of those cases a reversal of this judgment-must follow. The consideration of a written instrument may generally be the subject of an inquiry.' The consideration of the release - in this case was not merely the $250 but such further sum as was necessary to support the plaintiff as the result of his injury. Plaintiff made out a case for the consideration of the jury and the dismissal of his complaint was error.
The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.