16 A.D. 204 | N.Y. App. Div. | 1897
The plaintiff brought this action to recover for injuries inflicted upon her by the negligence of the defendant’s employees while she was a passenger upon one of its cars. The defendant alleged, among other things, as a separate answer to the cause of action, that before the commencement of the action the plaintiff had executed and delivered to the defendant a release in full of all claims she might have had against it by reason of the occurrence complained of. Upon the trial, after this release had been put in.evidence, the plaintiff offered testimony tending to impeach it for various reasons. One of these was that- at the time she signed it she did not know that it was a release, and was not informed of that fact. Another was ■ that she was induced to sign the paper by false representations made to her by her attending physician as to the nature and extent of her
'■ At the close of the testimony the plaintiff’s complaint was dismissed and the court directed that the exceptions taken upon the trial be heard in the first instance in the Appellate Division. The release, if valid, constituted a defense to the plaintiff’s cause of action. It was set up as such in the answer. The plaintiff was not required to reply to this new defense, but by express provision of the statute the allegation of it in the answer was to be deemed controverted by her by traverse or avoidance as the case might require. (Code Civ. Proc. § 522.) That provision of the statute gave to her the right, without any pleading, to rely upon every possible answer which she might have to the release, precisely as though it had been pleaded, and for the purpose of enabling her to insist upon those objections, any evidence which might tend to establish a valid objection to this defense was admissible. (Arthur v. Homestead Fire Ins. Co., 78 N. Y. 462.) She might prove either that the nature of the paper was improperly represented to her, and that she had no opportunity to examine it; or that her mental condition was such that she was unable to appreciate its character; or that it was procured from her by false representations as to the facts which existed at the time she agreed to give it. (Dixon v. Brooklyn City & Newtown R. R. Co., 100 N. Y. 170 ; Shaw v. Webber, 79 Hun, 307.) As she was not required to plead any of these defenses she was not precluded from relying upon any one of them because she had previously made and served upon the defendant an affidavit and notice alleging the existence of one defense, and saying nothing about another one. Those papers might be material as evidence upon the question whether in fact any other ground for invalidating the release than the one set up in them existed, but they did not in any respect constitute a pleading which bound her to rely upon the facts stated in either of them, to the exclusion of any
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Exceptions sustained, new trial granted, with costs to the plaintiff to abide the event.