
    Della A. Blair, Respondent, v. Utica and Mohawk Valley Railway Company, Appellant.
    Fourth Department,
    May 2, 1906.
    Release of action founded on negligence — facts insufficient to show that release was procured by fraud.
    A person who has received bodily injuries and who for a consideration has executed a release under seal, cannot recover for the injury until relieved from the effect of the instrument. " -
    When in an action for damages there is no evidence that the release was_ procured by the defendant’s agent through fraud, compulsion or undue influence, but on the contrary it is shown that the plaintiff met the agent to negotiate the settlement; that they agreed on terms, and that the release was read over to the plaintiff -before execution; there is no proof warranting a finding that the settlement was not honestly rqade, although the consideration foi' the release may have been inadequate.
    Appeal by the defendant, the Utica and Mohawk Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in th.e office of the clerk of the county of Oneida on the 27th day of March, 1905, upon the verdict of a jury for $1,125.10, and also from an order entered in said -clerk’s office on the 31st day of March, 1905, denying the. defendant’s motion for a new trial made upon the minutes..
    
      
      Warnick J. Kernan, for the appellant.
    
      Frederick B. Adams, for the respondent.
   Spring, J.:

. The plaintiff claims to have been injured on the 1-lth day of Ahgust, 1903, when stepping from defendant’s car on Genesee street at its intersection with Jewett place in the city of Utica. She testified that she signaled the conductor to stop the car, and it was stopped; and, as she attempted" to alight, it was started again and she was thrown to the pavement, sustaining injuries. While there is considerable conflict in the testimony, we are not disposed to hold on this branch of the case that the verdict is contrary to the evidence.' .

On the seventeenth of September Mr. Hamilton, the claim agent of the defendant, called at the house where the plaintiff was boarding to negotiate a settlement with her, and they arranged to meet at her room that evening. He called about eight o’clock, and the plaintiff, who was an unmarried lady of twenty-five years of age, and Miss Bishop, her room-mate, were present, Mr. Hamilton made an offer of fifty dollars, which was not accepted, but after' considerable bantering they agreed upon the sum of ninety dollars. The plaintiff and Miss Bishop testified that Mi\ Hamilton agreed also to pay the .expenses of the physician who had attended the plaintiff, and also the expenses incurred at the hospital where for about two weeks she had been cared for. Hamilton testified that he promised to reimburse her for the hospital charge. There, is no great importance to this testimony, for the defendant has not been presented with dr requested to pay either of these items.

A release in full under seal was executed by the plaintiff and witnessed by her friend, Miss Bishop, and the ninety dollars paid to her. A week later she returned the money to the defendant with a notice that she canceled the release, but the defendant declined to receive the money and advised her that it was on deposit subject to her order. •

The plaintiff testified that at the time of the execution of the release she was nervous, and Miss Bishop confirms this statement, and further testified that she herself was also in the same mental condition. Miss- Bishop testified: “ I had full opportunity to read this release; I had it in my hands; Mr. Hamilton didn’t say anything to me about not reading it; lie'didn’t make any pretense to keep me from reading it; I wouldn’t say that Miss Blair didn’t have this instrument in her hands; I won’t say that she didn’t have opportunity enough to read it; I won’t swear that Mr. Hamilton did not read this release; I will not swear that Mr. Hamilton did not read this release exactly as it reads to-day.”

There is no pretense that Mr. Hamilton tried to prevent either the plaintiff or her friend.from reading this release, or that he did not read it aloud, as testified to by him. Beyond that, the' parties testified' that the haggling over the price continued for some time, and as a result of it the agreement to accept ninety dollars was reached. The release simply evidences the agreement. It was fully understood that the cause of action was to be satisfied upon the payment of this sum, except as to the doctor’s bill and the account at the hospital, which is unimportant, for the action, is not to reform the original release or to recover on .a collateral independent agreement.

The trial judge instructed the jury that “ if this defendant was guilty of a fraud or'imposition or,undue influence whereby the release in question was obtained from this plaintiff, then your verdict in this case must be for the plaintiff.” Again, he stated to "the jury that the plaintiff claimed the “release was a fraud,” and, further, that “ it was an imposition, due to undue influence and fraudulent design ; a fraudulent attempt to obtain from her her signature to the instrument in question. If, on this testimony, you believe that that instrument was signed and executed by her through undue influence, or fraud, or imposition, and that it was not hér real contract, then you will find on that question that this release is not a bar to a recovery here if the plaintiff is right.”

There was no evidence justifying the inference that the release was obtained through fz’aud, or that any compulsion or undue jnfluence was exerted on the plaintiff to induce the execution of the release.. The claim agent met her by appointment. She knew the object of his errand. She was about the room and with her roommate. There was no excitement; no threats were indulged in; no fear was manifested. She signed the release voluntarily, appreciating its contents and expecting that the money received was in payment of her claim for the injuries she claimed to have suffered. The settlement may have been unfortunate .for her. She possibly ought to have received a-greater sum. Courts, however, will not interfere to' annul the compromise of a pending litigation evidenced■ by a sealed instrument, unless convinced that :an unfair advantage has been taken by one party over the other. The mere fact that, in the light of subsequent events, one ■ party has been benefited at the expense'or detriment of the other is not sufficient to-nullify an. adjustment made by the parties "willingly and knowingly.

Before the plaintiff can recover she must be relieved from the effect of this release. (Szymanski v. Chapman, 45 App. Div. 369.)

Undoubtedly the plaintiff -may be permitted to impeach the instrument. (Fleming v. Brooklyn Heights R. R. Co., 95 App: Div. 110; Grockie v. Hirshfield, 50 id. 87.)

Presumptivély it is valid, apd there was not sufficient proof in. this case to warrant the jury in finding that the settlement was not honestly made and the terms of the release fairly comprehended.

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

All concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts/having been examined and no error found therein.  