
    Nathan Cohen, Appellant, v. Isaac Schreiber, Respondent.
    (Supreme Court, Appellate Term,
    July, 1908.)
    Pleading — Evidence admissible under the pleadings — In general — Evidence in reply to defense set up in answer.
    In an action to recover damages for an alleged breach of a contract of employment, where the defendant sets up a release by the plaintiff and such an instrument is offered in evidence by the defendant and received upon the trial, it is error to exclude evidence offered by the plaintiff who is unable to read and write English that he was induced to sign the release under the belief that it was a receipt for money which the defendant paid him for work performed under his contract.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant, dismissing the complaint.
    Manheim & Manheim, for appellant,
    Jacob R. Schiff, for respondent.
   Seabury, J.

This action was brought to recover damages for the alleged breach of a contract of employment. The answer admits the contract and alleges that the plaintiff left the employ of the defendant of his own accord, and that the plaintiff released the defendant from any and all obligations arising out of the contract of employment.

The plaintiff proved the allegations of his complaint and admitted signing a paper which was a general release to the defendant. The plaintiff was unable to read and write English, and his counsel offered evidence to show that he was induced to sign the release under the belief that it was a receipt for money which the defendant paid him for work performed under his contract. The trial justice excluded this evidence and sustained objections to questions, the evident purpose of which was to show the circumstances under which the release was made and delivered. To all of these erroneous rulings counsel for the plaintiff duly excepted. Having excluded evidence offered to show that the release was obtained by fraud and that it was signed by the plaintiff in the belief that it was a receipt, the trial court dismissed the complaint. The exclusion of this evidence and the dismissal of the complaint were errors which require the reversal of this judgment. Whether the release was signed and delivered as a release, or whether it was obtained as a result of fraud and misrepresentation, was a question of fact which the court should have permitted the jury to determine. Grockie v. Hirshfield, 50 App. Div. 87; Kelly v. Mayor, 16 id. 296; Creshkoff v. Schwartz, 53 Misc. Rep. 576.

It follows that the judgment appealed from must he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and MacLean, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  