Robert Smith, Respondent, v. Frederick W. Whitridge, as Receiver of the Union Railway Company of New York City, Appellant

Robert Smith, Respondent, v. Frederick W. Whitridge, as Receiver of the Union Railway Company of New York City, Appellant. First Department, November 4, 1910. Release — evidence not showing mental incompetency of person - executing instrument. A plaintiff suing to recover for personal injuries cannot avoid the effect of a general release upon the ground that he was mentally incompetent when he executed it, where he admits that he was told that the paper presented to him by one whom he knew to be a representative of his attorney was a release; that he was asked to read it and failed to do so only because at the time he was ill in the hospital and suffering pain so that he was anxious to get rid of the person who brought the release. Appeal by the defendant, Frederick W. Whitridge, as receiver, etc., from a judgment of the Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1909, upon the verdict of a jury for $5,000; and also from an order entered in said clerk’s office on the 10th day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes. Bayard H. Ames, for the appellant. Cornelius J. Earley, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: This is an action for personal injuries. The defendant pleaded and proved a general release which, it is conceded, was executed by the plaintiff and delivered to the defendant in consideration of $325 paid by the defendant to the plaintiff’s attorney. Soon after his injury the plaintiff retained an attorney, who entered into negotiations with the defendant to settle the case, and sent a representative, one Langerman, to the plaintiff, who was then in a hospital, to obtain the latter’s consent to the settlement and to procure him to execute a release in case he consented. The plaintiff admits that Langerman said that he was the representative of said attorney, and directed the plaintiff to read, the paper which he was asked to execute, but his claim is that he was then suffering pain and was so anxious to get rid of Langerman that he signed the release without knowing what it was. He would not deny, however, that Langerman told him that the paper was a release. There is no claim that the plaintiff was induced by any fraud or misrepresentation of the defendant to sign the release. The plaintiff rests his case upon the proposition that he was mentally incompetent. But the mere fact that he was ill and suffering pain did not prove that he was incompetent. Indeed, his testimony leads to. the conclusion that he could have understood the release had he taken the trouble to read it, but that because of his pain he did not wish to be annoyed and so signed the release to get rid of Langerman. That testimony falls far short of establishing mental incompetence and cannot suffice to destroy the force and effect of a release, if such an instrument is to be accorded any force at all. As the plaintiff’s evidence failed to show that he was mentally incompetent to understand what he was doing, it is unnecessary to consider whether, under the circumstances in this case, he could avoid the release without returning, or offering to return, the consideration for it. This is not the case of a release obtained from a sick man by some trick, artifice or fraud practiced by the defendant. The jury were permitted to find for the plaintiff in case they found that he did not know the contents of the instrument which he signed, whereas the motion of the defendant for the direction of a verdict should have been granted. That conclusion renders it unnecessary to review the evidence respecting the defendant’s negligence and the plaintiff’s freedom from contributory negligence, though we are of the opinion that the verdict on that branch of the case is plainly against the weight of the evidence. The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.