
    Morris Markowitz, Respondent, v. The Metropolitan Street Railway Co., Appellant.
    Appeal from an order denying a motion made to set aside a verdict on the ground of newly-discovered evidence and surprise.
    Henry A. Robinson (John T. Little, of counsel), for appellant.
    Julius H. Cohn, for respondent.
   Conlan, J.

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.

Hascall and Schuchman, JJ., concur.

Order affirmed, with costs.  