140 N.Y.S. 260 | N.Y. App. Div. | 1913
Lead Opinion
The action is to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s cars on Saturday, May 19, 1906. On the day after the accident a representative of the defendant called on the plaintiff and procured a release from her, and in consequence thereof the court, at the close of the plaintiff’s case, dismissed the complaint.
The dismissal of the complaint was clearly contrary to the settled law of this State. The learned trial court, in granting the motion to dismiss, stated that “ Taking the evidence most favorably to the plaintiff, there was a gross fraud,’’but that he felt constrained by the decision in the case of Urtz v. N. Y. C. & H. R. R. R. Co. (137 App. Div. 404) to nonsuit, presumably because the plaintiff had failed to return to the defendant, or to offer to return, the trifling sum which was paid to her by the
In the case at bar we must take the evidence on behalf of the plaintiff as undisputed and give to it its fullest legitimate effect. In that view the release was made without the plaintiff’s knowledge, without any reason on her part to believe that a release had been given, and it was procured by palpable fraud. The defendant’s representative called on her the day after the accident, on Sunday, when, the evidence shows, she was in a condition of much mental confusion. He left the sum of six dollars for the expressed purpose of buying medicines, and asked her to “ sign for the money,” saying that he must have a paper of that kind to turn into the defendant’s office. She signed the paper in apparent belief in the truthfulness of his statement, but when the paper was produced on the trial it turned out tobe a release of the claim, executed under seal and acknowledged before the defendant’s representative as a commissioner of deeds and dated the following day, Monday, the twenty-first, the very day that this action was commenced. The paper recited the payment of five dollars as the consideration instead of six. The fact that the plaintiff took the representative’s word that the document was only an acknowledgment of the
In Fleming v. Brooklyn Heights R. R. Co. (95 App. Div. 110) this court held unanimously that when the defendant in an action to recover damages for personal injuries pleads as a defense a release executed by the plaintiff, the latter on the trial may impeach such release by proof that it was obtained by fraud or misrepresentation. In that case, it is true, no question was raised as to the duty of restoring or offering to restore the money received on the execution of the release, but that such restoration or offer to restore is unnecessary as a condition precedent to the maintenance of an action on the original claim, is held in some of the authorities therein cited.
In Dixon v. Brooklyn City & Newtown R. R. Co. (100 N. Y. 170) it was held that where there was testimony showing- that plaintiff at the time he signed a release of the claim was mentally incompetent to appreciate the character of the instrument, the question of the validity of the document was properly left to the determination of the jury.
Where a release is signed by a party without reading it, and no false statement or suggestion is made as to its contents or purport on behalf of the party procuring its execution, a different question is presented. (See Smith v. Whitridge, 140 App. Div. 484.) But when a statement is made as to the nature and object of the document tending to indicate that it is a mere receipt or acknowledgment of money paid for a purpose other than a settlement of the claim, the party thus fraudulently procuring a release cannot urge as a defense that its victim should not have believed the statement, and was compellable to read the paper before signing, or be bound by its contents, however alien to the real transaction.
It follows that the judgment and order should be reversed.
Burr and Rich, JJ., concurred; Woodward, J., read for affirmance) with whom Jenks, P. J., concurred.
Dissenting Opinion
There is no claim of fraud; no suggestion that the defendant’s claim adjuster did or said anything to mislead the plaintiff. She signed the release for a valuable consideration, and did this in the presence of her husband, and if she did not read it or ask as to its contents it is not the defendant’s fault. She could not accept and retain the consideration for the release and then bring an action to recover for the claim that she had released. She must surrender all benefits before she has any standing in an action at law upon her claim. (Shaw
The- judgment and order appealed from should he affirmed, with costs.
Jenks, P. J., concurred.
Judgment and order of the County Court of Kings county reversed and new trial ordered, costs to abide the event.