68 N.Y.S. 292 | N.Y. App. Div. | 1901
Lead Opinion
This action was brought to recover damages' sustained by the plaintiff, by reason, as he claims, of the negligence of the defend
The case was brought on for trial before the court and a jury. After the opening of the case by the counsel for the plaintiff, the counsel for the defendant moved upon the opening and on the pleadings to dismiss the complaint upon the ground that there was no allegation that the money received as consideration for the release .had been restored or offered to be restored.
It was stated in the opening, among other things, that the plaintiff -did not know that he was signing a release for his personal inj uries :and that the release was only signed for the horse and wagon, which were worth more than he received; that the plaintiff claimed nothing now for damages on the horse and wagon; that the release ■was obtained by fraud or false representations.
This question must be determined upon the assumption that the facts alleged- by the plaintiff in his pleadings or in the opening are true. (Clews v. New York Nat. Banking Assn., 105 N. Y. 399.) So that the court in' effect held that, although the release was obtained by fraud and the plaintiff only settled for the damages to his horse and wagon and received the money only for such settlement, still that he could not recover for his personal injuries without restoring or offering to restore the money.
There is no doubt about the right of the plaintiff to impeach the release for fraud. (O’Meara v. Brooklyn City R. R. Co., 16 App. Div. 204; Kirchner v. New Nome S. M. Co., 135 N. Y. 182, 189.) The defendant, however, says that the rule that a party seeking to rescind a contract for fraud must first restore or offer to restore what he has received under it, is applicable to this case. The Ki/rchner case, above cited, was an action to recover damages for certain alleged trespasses, and the defendant proved a general release covering the trespasses complained of and other matters connectéd with the same transaction, and it was said (p, 189): “If the plaintiff can show that, by a mutual mistake of the parties, or by what is its equivalent, a mistake on his part and fraud on the part of his adversary, the present cause of. action is embraced in the release, contrary to the intent of the parties, or contrary to his intent in case fraud is proven, he is entitled to an instruction to the jury to the effect that the release does not bar his right to recover.”
The plaintiff, under the reply and the statements in the opening,
In Bliss v. N. Y. C. & H. R. R. R. Co. (160 Mass. 447) it was held that “ where one, who has sustained injuries to his clothing and also to his person by a railroad accident, has been induced by fraud to execute to the railroad corporation a receipt in full and a release for both injuries, upon being paid a small sum, which was understood by him to be compensation merely for the injuries to his clothing, he need not return the money so received before bringing an action for the personal injuries.”
But the defendant says that the plaintiff had but one cause of action for all the injuries, though different items for damages, and that a settlement and release for some of the items would bar the whole claim, the same as if there was a suit and recovery for such items. That question was also considered in the Bliss case and a conclusion reached adverse to the contention of defendant. It was said that if one sues to recover for an injury, he may well be held to include in his action all that he is entitled to sue for in respect to that cause of action, hut if one is making a settlement the same reasons do not apply; that if he cannot make a full settlement he may make a partial one and thus eliminate one element out - of the controversy. This view seems to be quite reasonable.
The foregoing considerations lead to the conclusion that the trial court erred in holding that, although the facts were as the the plaintiff claimed them to he, still he could not recover for his personal injuries without restoring the money he had received. The judgment must, therefore, be reversed.
All concurred, except Kellogg and Edwards, JJ., dissenting.
Dissenting Opinion
(dissenting):
Tlie complaint is for negligence of the defendant whereby -it is alleged plaintiff lost a horse .and suffered personal injuries. The answer alleges, among other things, an accord and satisfaction and written release for the cause of action alleged duly executed by plaintiff. On application of defendant the Special Term directed plaintiff to make verified reply to that portion of the answer setting forth the release.
The reply was made and served and admitted the making of the-release in “ terms and substance ” set forth in the answer, “ but-denies that the said release covers and includes the cause of action set up in the complaint in this action.” The court at Special Term required a further and more explicit reply, and plaintiff then served one in which he, for the purpose of avoiding the effect of the release, in substance said that at the time the release was executed he was in a condition of mind which made him unfit to appreciate the character of the instrument; “ that if he did execute a release of the cause of action alleged in the complaint the same was obtained from him by deceit and misrepresentation while-he was so enfeebled and incapacitated to properly understand the effect and meaning of the instrument he signed, and that he never has intended to execute a release to the defendant for his personal injuries as set forth in the answer.”
This presented an issue well defined. Was the release procured at a consideration of $200 paid, procured by fraud ? So the issue remained down to the trial. Under this issue no proof'could have been made going to show that the $200 was paid as a partial remuneration, the value of the horse or horse and wagon; possibly, if no reply had been served such proof would have been proper, but to make it so, the plaintiff would first need to 'get his reply off the record or have it amended to fit the new facts alleged. I, however, very seriously doubt the propriety of permitting such a complete change of base on the trial. In fairness pleaders should be held to the issues tendered by their pleadings. This was the situation when plaintiff opened- his case to the jury. What he said in that opening the record does not disclose, except that he stated the release “ was only signed for the horse and wagon.”
Motion was made by defendant’s counsel for a dismissal “ for
The dismissal here provided for in the order was a condition attached to the granting of plaintiff’s request to withdraw a juror, and he accepted the favor he asked with the condition attached. He took the benefit of the allowance of his request to withdraw a juror and postpone the trial. He even asked to have this condition
It was held in Hooper v. Beecher (109 N. Y. 609) that “A party in whose favor a judgment is entered or an order made cannot be aggrieved by it, and he is, therefore, in no position to claim the right of appeal.”
Traffarn v. Getman (19 N. Y. St. Repr. 295) is a General Term decision. . The justice in that case returned that the defendant, against whom the decision was rendered, instigated the judgment. The court held that' he had no right to appeal. Follett, J., said : “ I am not prepared to hold * * * that the justice’s judgment is valid; but I am clear the defendant had no right of appeal.”
Austin v. Wauful (36 N. Y. St. Repr. 779) seems to be fiill authority for the determination of the case here considered. In the opinion Maetiií, J., says: “ In the case at bar the plaintiff at the close of the trial, instead of standing upon, his exceptions to ■ the rulings of the court and permitting it to dismiss the complaint, and then relying upon the questions of law in the case, asked leave to amend his complaint and that the trial should be postponed. The court allowed him to amend and postponed the trial at his request. As a condition to such amendment ■ and postponement, the court required the plaintiff to pay twenty dollars costs and witness’ fees, and directed that in default of an amendment and payment of costs ■ that his complaint should be dismissed. While the plaintiff excepted to the conditions imposed upon granting the order he did not refuse to accept the order which postponed the trial and gave him the right. to amend. The effect -of this procedure was, we think, to effect an abandonment of the proceedings had on the trial, and leave the
Weichsel v. Spear (47 N. Y. Super. Ct. 223) was affirmed in 90 Hew York, 651. There leave to amend the complaint'was granted on plaintiffs request, and the court gave leave to amend in four days on payment of costs; on failure to amend and ¡Day within the designated time, judgment of dismissal was entered as the order provided. On appeal the court said he was bound by the order; that lie might have refused it, not being satisfied with the conditions ; that the dismissal was under the circumstances to be treated as a' dismissal at his own request, and the only relief he had was to amend and then proceed with the action. Grunberg v. Blumenlahl (66 How. Pr. 62); Canary v. Knowles (41 Hun, 542); Dambmann v. Schulting (6 id. 29), are all cases illustrating the same doctrine.
I see nothing in this case which distinguishes it from those cited, and on principle and following the uniform practice, the plaintiff should be held to be estopped from attacking the order procured at-his own instance and for his own benefit and under which he obtained time to amend by the usual practice of withdrawing a juror.
The judgment should be affirmed, with costs.
Edwards, J., concurred.
Judgment reversed and new trial granted, with costs of appeal to. appellant to abide event. ‘ ■