Grocz v. Delaware & Hudson Co. — 174 A.D. 505

Majority

p. 505

Bronislaw Grocz, Respondent, v. The Delaware and Hudson Company, Appellant.

Second Department,

October 20, 1916.

Headnote

Evidence — action for personal injuries — general release negotiated through interpreter—English translation of plaintiff's statements as communicated to defendant’s agent by interpreter.

Where, in an action to recover for personal injuries, the defendant as a separate defense set up a general release by the plaintiff, who was a foreigner unable to speak the English language and who executed the release on information received through an interpreter, the plaintiff having given evidence of what the interpreter told him in his own language about the terms of the settlement offered by the defendant’s agent when the release was signed, the defendant became entitled to prove what the interpreter said in English to the agent concerning the plaintiff’s replies.

Appeal by the defendant, The Delaware and Hudson Company, from a judgment of the Supreme Court in favor of the ■plaintiff, entered in the office of the clerk of the county of Richmond on the 5th day of May, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.

The judgment was rendered upon a special verdict and dismissed the second defense in defendant’s amended answer.

In an action for personal injuries a general release in consideration of $300, executed on February 24, 1915, was set up as a second defense. Plaintiff’s reply was to the effect that he had been visited in the hospital by persons who did not speak his language (Polish), and that his signature or mark was put on the paper without knowing that it was a general release. This issue was separately tried under Code of Civil Procedure, section 973.

Defendant introduced the release and rested. Plaintiff, through an interpreter, testified that a Mr. Crippen, representing defendant, called at the hospital, and that a fellow-patient, who was a Lithuanian, interpreted to him what Crippen said, telling him that the money was an advance of wages and did not say that it was a release. Mr. Crippen was asked

p. 506

what the interpreter- had told Orippen in English as the plaintiff’s replies in this interview. This was objected to' and excluded, to which ruling defendant excepted. The jury-found for plaintiff. On this appeal this exclusion is assigned as error.

George H. Richards [W. D. Waldron and Walter O. Noyes with him on the brief], for the appellant.

Martin T. Mantón [,Stephen C. Machinski with him on the brief], for the respondent.

What the interpreter rendered to Orippen as plaintiff’s answers should have been received. (People v. Randazzio, 194 N. Y. 147 ; Wright v. Maseras, 56 Barb. 521 ; Commonwealth v. Vose, 157 Mass. 393 ; Wigm. Ev. §§ 667, 668, 812; Chamberlayne Ev. § 2612; Jones Ev. [2d. ed.] § 265.)

The contention that, in order to let in such testimony, there must be an express agency through personal selection- of the interpreter, or an authority implied from near relationship to the one being interpreted, is negatived by People v. Randazzio (supra), where the interpreter was a stranger to the prisoner, called in by the district attorney. Nor is it essential that the interpreter be himself produced as a witness. Plaintiff’s previous testimony as to what this interpreter had rendered into Polish as the terms of Orippen’s offer made admissible what, through that same medium, had been translated and communicated in English to Orippen.

The judgment and order should, therefore, be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

Cases cited

Wright v. Maseras 56 Barb. 521 N.Y. Sup. Ct. 1869-04-06 p. 506