18 Misc. 42 | N.Y. App. Term. | 1896
The action is by the. plaintiff, a chorus singer, against the defendant, a theatrical manager, on a contract of employment, and is founded on an alleged wrongful discharge.
The plaintiff claimed that he was engaged for a season of thirty-five weeks, commencing September 10, 1894, while the defendant contended that the engagement was for an indefinite period, terminable on two weeks’notice.
■ The defendant, on October 1, 1894, served on the. plaintiff a written notice, stating that the former had availed himself of the usual two wéeks’ clause applicable to such engagements, and that the plaintiff’s services would not be required after October 14,1894. The plaintiff was paid up to the last-named day.
There was no evidence proving such a custom as that stated in the notice of discharge, except a written admission, signed by the. plaintiff, November 2, 1894, acknowledging the existence of the custom, and that it applied to his engagement with the defendant.
The action was begun October 29, 1894, and two days afterward the plaintiff wrote to the defendant that if the latter would pay him three weeks’ salary he would be satisfied; if not, the defendant would have “ to try the consequences of the law.” On November 2, 1894, four days after the action was instituted, the parties met, the admission as to custom and the general release were executed by the plaintiff, the $36 consideration (two weeks’ wages) paid, and the cause of action apparently extinguished as between the parties.
Upon the trial the plaintiff undertook to avoid the effect of the admission and release by claiming, first, that they were obtained by fraud; second, that the plaintiff had agreed to give his attorneys one-half of the claim for their services; that they thereby acquired a lien on the cause of action to that extent; and the settlement was inoperative as to jthem. The two questions will be considered separately.
First, as to the alleged fraud. The plaintiff admitted that the defendant had made no misrepresentations, and that no artifice was used to obtain his signature to the paper's; and the only attempt to explain away their effect was by his testimony that he was hard up; wanted something to eat; had mislaid his eye-glasses; that the papers were not read to him, and he did not know what he was signing, and supposed they were receipts for $36. This evidence entirely failed to establish fraud sufficient "to avoid the release. The plaintiff is an intelligent man, able to read and write the English language, and if he did not read the papers understandingly it was because of his own neglect, with which the defendant is not chargeable.
. In cases free from misrepresentation and fraud, where no con- • fidential relation exists and the parties deal upon an equal footing, with corresponding means of knowledge, and they are capable of reading and understanding the instrument they sign, they are bound to inform themselves of the contents thereof, and if they
A person in the full possession of his faculties, and able to read, is bound to know and understand the- contents of an instrument executed by him, and is held to it, unless he was by a trick or artifice induced to sign a different instrument from that to which he intended to affix his signature, as where one paper is surreptitiously substituted for another. Bigelow on Fraud, 73, 75.
The party executing the paper is generally bound to exercise the ordinary diligence he possesses to avoid imposition. Chapman v. Rose, 56 N. Y. 137; 8 Am. & Eng. Ency. of L. 643; See Bishop on Cont., § 169; Long v. Warren, 68 N. Y. 426.
The authorities agree that written instruments,, signed by parties who have full opportunity to know their contents, cannot be disregarded, unless the evidence is clear that in obtaining their execution fraud has, in fact, been committed. Dorwin v. Westbrook, 86 Hun, 368; Walbourn v. Hingston, id. 63; Kirchner v. N. H. S. M. Co., 135 N. Y. 182; Albrecht v. R. R. Co., 87 Wisc. 105; s. c. 58 N. W. Rep. 72.
If the defendant had paid three weeks’ salary all would have been perfectly satisfactory to the plaintiff, according to the letter which he himself voluntarily wrote to the-defendant; but becausé he received a salary for one week less, as the result of the compromise, he made the grave charge of fraud, and sought to establish it in the vague and unsatisfactory manner stated. The charge was unproved, and the release as a consequence' binding upon the plaintiff. ' • ■ •
Next, as to. the effect of the attorneys’ lien.
The fact that they had a lien on the cause of action does not aid the plaintiff. If they required any protection in that regard they should have applied to the court for leave to prosecute, the action in aid of their lien, and at their own risk and expense. Oliwell v. Verdenhalven, 17 Civ. Pro. 362; Washburn v. Mott, 19 id. 439; Dimick v. Cooley, 3 id. 141; Goddard v. Trenbath, 24 Hun, 182; Quinlan v. Birge, 43 id. 483; Smith v. Baum, 67 How. Pr. 267; Tullis v. Bushnell, 65 id. 465; Murray v. Jibson, 22 Hun, 386; Stahl v. Wadsworth, 13 Civ. Pro. 32; Coster v. Greenpoint Co., 5 id. 146; Russell v. Somerville, 10 Abb. N. C. 395, note; Kehoe v. Miller, id. 393; McBratney v. R. R. Co., 87 N. Y. 467; Publishers’ Printing Co. v. Gillin Printing Co., 16 Misc. Rep. 558. If this
The order permitting the prosecution would have qualified the recovery by explaining its purpose, and the defendant could have discharged the judgment by paying the amount of the lien as established with the costs following its establishment. As the record stands now there is a general verdict in favor of the plaintiff for the whole amount of his claim and interest, and the only manner in which its satisfaction can be obtained is by full payment of the judgment entered thereon.
Further, since the proof fails to present fraud sufficient to vitiate the written admission as to custom, the plaintiff, having recei v^d the required two weeks’ notice, and been paid in full up to the time it was to take effect, was without any cause of action to which the attorney’s lien could attach, and the only verdict.permissible was one for the defendant. There is, therefore, no theory upon which the recovery can be sustained.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Daly, P. J., and Bischoff, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.
