Markowitz v. Metropolitan Street Railroad — 65 N.Y.S. 784

Majority

p. 784

MARKOWITZ v. METROPOLITAN ST. R. CO.

(City Court of New York, General Term.

July 11, 1900.)

Headnote

Release—-Fraud—Effect.

A release for injuries sustained by reason of the negligence of defendant, the execution whereof was procured by deceit and fraud, and by inducing the plaintiff, who was illiterate, to believe that he was merely signing a receipt for a gratuity, will not bar an action for such Injuries.

Appeal from special term.

Action by Morris Markowitz against the Metropolitan Street-Railroad Company. There was a verdict and judgment in favor of plaintiff, and defendant moved to set aside the verdict on the ground of newly-discovered evidence and surprise. From an order denying the motion, defendant appeals.

Affirmed.

Argued before COHLAH, SCHUCHMAH, and HASCALL, JJ.

Henry A. Robinson, for appellant.

Julius H. Cohn, for respondent.

The cause was tried, and a verdict rendered for the plaintiff. Upon the trial a witness for the defendant, the doctor, testified, in effect, that the case had been settled prior to the trial, and ‘thereafter the defendant moved for a new trial at special term, and asked leave to serve a supplemental answer, which set forth a general release claimed to have been executed and delivered by the plaintiff to the defendant for the alleged consideration of $115. There is a significant fact connected with this case which we are in no disposition to overlook. It appears that the doctor also furnished to the plaintiff a memorandum in writing upon an occasion when some money was handed to the plaintiff, which might be termed an emergency fee, if no stronger characterization be applied, and which amounted to $10, and the release at the same time mentions the sum of $115 as being the sum paid. The plaintiff in his affidavit details all the circumstances which surrounded this somewhat mysterious transaction, and asserts his ignorance of the paper presented by the defendant, and of his inability to understand writing beyond a few letters or characters in the Hebrew language. This whole transaction does not call for the least particle of sympathy, and does not commend itself to the favor of the court. Transactions between the opposing parties to a suit of this character, even if carried on without the knowledge of the attorney, must be in all respects fair and just, and able to stand the light of day. No advantage which is taken or attempted upon the guileless and innocent or unlettered and ignorant will be upheld by the court when its authority is invoked to interfere to prevent a wrong.

The order appealed from must be affirmed, with costs. All concur.