
    Michael Herman, Appellant, v. P. H. Fitzgibbons Boiler Company, Respondent.
    Fourth Department,
    January 12, 1910.
    Master and servant — negligence — Labor Law — vessel is structure — scaffolds — release obtained by fraud—when tender of consideration unnecessary — appeal—direction-of judgment on special verdict.
    Where planks aré laid- upon crosspieces supported by upright timbers- to enable: workmen to attach iron plates to a. vessel, the vessel- is a structure and -the , platform is a scaffold within, the meaning of section 18 of the Labor Law, and the master may be held liable for injuries received by the fall of the platform.
    Where "a master induces an illiterate servant'who has suffered, personal' injuries, to execute a general release by misrepresenting the nature of -the instrument, the fraud is not in.procuring the contract, as a contract requires.a meeting of the minds, but consists in procuring the execution of the instrument.
    Where the fraud consists in procuring, the execution of such instrument the servant need not tender the consideration received before bringing an action to recover for personal injuries. •
    Where the decision of a motion for a nonsuit was reserved- pending á finding by ■the jury on specific q.uestionsipf fact, and a special verdict-in favor of the plaintiff was not set aside, b.ut the nonsuit was granted, the appellate court will direct judgment upon the verdict where it is moderate, not contrary to the evidence or law, if there are no exceptions requiring a new trial.
    McLennan, P. J., dissented, in part.
    ■ Appeal'by tbe plaintiff, Michael Herman, from a. judgment of the Supreme Court in fayor of the defendant,, entered, in the office of the-clerk of the county of Oswego on the 31st day of October, 1908, upon the dismissal of the complaint by direction ,of the court after a trial at the Oswego Trial Term, certain questions of fact having been submitted.to the jury.
    
      L. W. Backer, for the appellant.
    
      Elisha B. Powell, for the respondent.
   Kruse, J. :

The plaintiff, a workman in the defendant’s employ, was at work upon a scaffold,- engaged with other workmen in. attaching iron plates to a vessel. The scaffold gave way and the plaintiff was preeipitated to the ground, a distance of about ten or fifteen feet, and hurt. The action is brought to recover for his personal injuries.

The scaffold was built, by placing two rows of upright timbers about four feet apart, with cross pieces nailed at both ends to' the uprights. Two planlcs were laid side by side with the ends resting upon the cross pieces,. There were several sections and other parts which need not be described. One of the cross pieces, a few inches from where it was nailed to the upright, broke, thus letting down the plank upon, which the plaintiff was standing, causing him to fall.

Without describing more particularly the vessel, and scaffold, or more minutely detailing the surrounding circumstances, it is sufficient to say that we are of the opinion that the vessel was a structure, and that the platform upon which the plaintiff was at work was a scaffold within the meaning of section 18 of the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415), relating to scaffolding for the use of employees, and that the proof shows that the scaffold was furnished by defendant and the plaintiff directed to perform work thereon, and that the plaintiff was hurt through the fault of the defendant in furnishing an unsafe scaffold.

The difficulty arises over the question of the settlement of the claim. The defendant contends that it paid to the plaintiff the sum of eighty-five' dollars, besides his doctors’ bills and hospital expenses, in payment and full discharge of all his claims against the defendant, and that the plaintiff accepted and received the same and executed a general release under seal accordingly. The plaintiff admits the payment, but denies that there was any agreement to accept the same in settlement and discharge- of his claim.

It appears' that five days' after his injury, and while he was in the hospital, the defendant’s bookkeeper and a lawyer came to see him. The plaintiff testifies that the lawyer said to him that he had come there to pay his Lospital bill and doctor bill; that the plaintiff said' that he was glad of it; that, the lawyer asked .the bookkeeper what the plaintiff’s wages were a week, and was told sixteen dollars and fifty cents; that the lawyer said that. the doctor claimed that the plaintiff would be all right in. about five weeks, and that he would pay him five weeks’ wages, which would amount to eighty-fiv’e dollars and fifty cents; that the lawyer did some writing and asked him to sign .his name; that he said he did not write; that he asked the, lawyer to put it down for him, and the lawyer said to put a cross to it; that that would answer just as well; that he put a cross to the paper and handed it to the bookkeeper; that then the lawyer-said he would pay him five weeks’, wages, and the plaintiff said, “■All right;” that the'lawyer'made.it eighty-five dollars, a little over, and said to him, “ I will make you a present of that,” and plaintiff thanked him.

The paper- to which the plaintiff made his cross was,' in form, a general release. The payment .of the eightydive dollars seems to have been made by draft, drawn by the lawyer,upon some one in Syracuse, payable to the order of the plaintiff, and contained the statement: “In Settlement of Claim Hermans vs. P. H. Fitzgibbons Boiler Co.” The draft was delivered to the plaintiff and the defendant paid the doctor’s bill and hospital charges.

The plaintiff denies that there was any talk of a settlement. He asserts that he did not know and was not told'that the paper which -lie signed was a release. He was hard of hearing and unable to read and write. The testimony of the bookkeeper and the .lawyer is directly to the contrary. While it is not claimed jthat the release -was read to the plaintiff, the lawyer testifies that he stated. to the plaintiff that it Was a release in full of his claim; that he could not sue, that-it was.in settlement. The defendant’s president also testified, that in a. conversation a few days afterward, plaintiff stated to him that he had settled;- that he had been told he acted foolishly; that lie inquired,as to whether, he would get pay for future wages, aside from the- eighty-five dollars; and that he, Fitzgibbons, the defendant’s president, stated to him that he would not promise that; that if he took the check it. must be in settlement j-that thereupon- he, Fitzgibbons, indorsed the plaintiff’s name upon the check, and the money was paid out as the plaintiff directed. Fitzgibbons further testified that afterwards lie figured up-what the plaintiff’s wages wonld' have been had-he remained to finish the job, and sent, plaintiff the balance. Plaintiff denies that there was any such talk, and testified that all he received for wages in addition to the eighty-five dollars was eleven dollars which' he had earned before the accident. ■

At the close of the evidence a motion for a nonsuit was made. It was' held until the coming in of the verdict of the jury. The jury specifically found that the plaintiff did-not accept the $85 and payment of the hospital charges and physicians’ bills in settlement and satisfaction of his claim, and rendered a general verdict of $300 in favor of the plaintiff. The verdict was not set aside, but the motion for a nonsuit was granted. The trial court held that it was the duty of the plaintiff to return or offer to return' the money which had been paid to him upon the alleged settlement..

If the plaintiff’s testimony is to be believed, there was no agreement to settle his claim, and the money was not paid upon any such contract. The fraud, if any, was not in getting the plaintiff’s assent to a contract, but in procuring him to execute an instrument of the contents of which he was ignorant, which purported to discharge his. claim, when in fact he had not made any such agreement. Under such circumstances he was not required to return the money: in order to maintain the action. (Cleary v. Municipal Electric Light Co., 47 N. Y. St. Repr. 172; affd., 139 N. Y. 643; Shaw v. Webber, 79 Hun, 307; affd., 151 N. Y. 655; Wilcox v. American Tel. & Tel. Co., 176 id. 115, 118.)

The case of Doyle v. New York, O. & W. R. Co. (66 App. Div. 398) is relied upon as an authority to sustain the nonsuit, but in that case it appeared that the cause of action had been settled, and that the plaintiff had received from the defendant the sum of $800 upon such settlement, which he had retained and not offered to return to the defendant. The jury was instructed that if the alleged settle-, ment was procured through fraud, the plaintiff might recover, but that in that case the defendant should be credited with the $800, and that sum should be deducted from the amount of any damages which it might find. The jury found a verdict for the plaintiff, fixing his damages at $1,200 and deducted the $800, leaving $400 as the amount of the verdict. The judgment, entered thereon was reversed by this cfurt, but that case is quite unlike this one. Here the jury found that the money was not paid in settlement, and the fraud claimed does not relate to the contract, but merely t'o the execution of the written instrument.

The distinction between the two kinds of fraud is pointed out in a recent case in the Court of Appeals involving the execution of a conveyance of real estate. (Smith v. Ryan, 191 N. Y. 452.) At page 457, Chief Judge Cullen says: “There are two kinds of fraud which differ essentially .in their character) in the one the grantor, is induced to convey his property by fraudulent representations as to the value, nature or character of the consideration, he receives for the conveyance. This is sometimes called fraud in the consideration. In the other case the grantor is deceived into the execution of an instrument of the contents of which he is ignorant. This is sometimes called fraud in the execution of the deed. The distinction between the two cases lies just here. It is elementary law that the assent of the parties. is necessary to constitute a binding contract. In the first case the assent of the party though obtained- by fraud is, nevertheless, obtained not only to the execution of the instrument, but to the contract which it evidences. In the second case' there is procured only the signature to and execution of the written instrument, but not assent to the contract therein stated.”

While'the trial judge would have been justified in setting aside the verdict, I think the nonsuit should not have been granted.

The only question remaining is, whether a new trial should be granted or judgment directed upon the verdict. Of course, if there are any exceptions which require a new trial, we cannot direct judgment- to be entered upon the verdict. (Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86, 90.) I think there is none. But even then the verdict should not be. reinstated if it is contrary to evidence or contrary to law. I have no doubt of the legal liability of the defendant for the injuries which the plaintiff has sustained, and the verdict is very moderate, although I am free to admit that the finding of the jury upon the question of settlement appears questionable. But the testimony comes to us reduced to narrative form; the jury had the advantage of hearing the questions and answers and seeing the witnesses, and I think Sunder all the circumstances we had better let the verdict stand, and not prolong litigation.

'' Having reached' the conclusion that a new trial should not be granted, judgment should be directed for the plaintiff upon the verdict. (Code Civ. Proc. § 1187; Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556.)

The judgment entered upon the nonsuit should be reversed and judgment directed to be entered on the verdict, with costs.

All concurred, except McLennan, P. J., who dissented upon the ground that the plaintiff having executed a release for damages sustained should have tendered back the money received or procured a cancellation of the release before bringing action for damages. (See Doyle v. New York, O. & W. R. Co., 66 App. Div. 398; McLaughlin v. Syracuse Rapid Transit R. Co., 115 id. 774; Shaw v. D., L. & W. R. R. Co., 126 id. 210.)

Judgment entered upon the nonsuit reversed, with costs to the appellant, and judgment ordered'in favor of the plaintiff upon the verdict, with costs.  