
    Herman Williams, Respondent, v. Francis Wilson, Appellant.
    (City Court of New York, General Term,
    June, 1896.)
    1. Release — Fraud.
    Active fraud is not necessary to the avoidance of a release; any intentional concealment by the releasee of the purport of the instrument, or an omission to inform the releasor of Ms mistake, if he perceives that he is in error as to its provisions, is sufficient to avoid it.
    
      2. Attorneys — Lien — Proof of, on trial.
    Where the plaintiff seeks to avoid a release given after the commencement of the action on the ground of fraud or mistake, the attorney may properly be allowed to prove upon the trial the extent of his lien and notice thereof to defendant before the alleged settlement.
    3. Trial — Surprise.
    Surprise cannot be claimed on the ground that an attempt to avoid a release set up in the answer was not anticipated, where the defendant has set up several other defenses in the answer:
    Appeal by defendant from judgment on verdict for plaintiff for the- full amount claimed, and from order denying new trial.
    Fromme Bros., for respondent.
    Hyde & Leonard, for áppellant.
   Van Wyck, Ch. J.

- The plaintiff’s alleged cause is for damages for a wrongful discharge by defendant, who, by express contract, had employed plaintiff as a chorus singer for a specific term of thirty-five weeks. The answer denies this, and alleges that the employment was for an indefinite- term, and that there was an express agreement that it could be terminated by two weeks’ no tice,. and further, that there was a prevailing custom that such contracts of employment could be terminated upon such two weeks’ notice, and that such notice had been given, and that plaintiff was “ incompetent, unfit and unable ” to perform, and finally plead a general release, executed by plaintiff after commencement of action. In pleading all of his defenses the defendant must have anticipated that plaintiff would at trial endeavor to avoid the release. There is no certificate that the printed case, contains all the evidence given upon the trial, so that only questions of law are properly up for review, and if there is proof, no matter how slight, ' sufficient to justify the submission of the disputed questions of fact to the jury, their verdict will not be disturbed on appeal. Aldridge v. Aldridge, 120 N. Y. 614. The defendant made no motion for a nonsuit or for a dismissal on the merits "at the close of the case. However, after the judge had charged the jury and passed upon his and his adversary’s requests, the defendant requested the direction- of a verdict in his favor upon the evidence. The judge charged the jury “ that the release is a perfect defense unless there is evidence to show that it was obtained by fraud or • deceit.” The appellant does not complain of the rule thus laid down, but contends that there was no evidence of any active fraud by him. However, the fraud of .the defendant may have been purely passive. An intentional concealment by the defendant of the purport of the instrument, or an omission to inform plaintiff of his mistake, if he perceived that he was in error as to its- provisions, . would be sufficient -to avoid the release. The plaintiff testified in regard to the conversations and circumstances at the "time, that he was paid $36 by defendant, and the release was signed, as.follows: “ I saw.him (defendant) that time in his dressing-roóm. He was in the office alone there. I say, Mr. Wilson, I have not got anything to eat since-five days; I haven’t got any money, everything is in the pawnshop, 1 am in a very poor condition,’- and Mr. Wilson said, * Well, my dear, I can’t give you any more now.’ Well, I say, I am hungry, I must get something to eat,’ and he was ringing the bell and there came his "manager, I- think, Mr. Tais, I don’t remember the name, and he said, Mr. Wilson, let him sign first, before you give him the money/ and then he brought some paper for me to sign my name. I don’t know what was on the paper. I don’t understand it. I sing in Italian and French language, and in English language, but I don’t understand it, what it 'means> the . words, what is written, so I thought I signed for the $36, what I received from Mr. Wilson. I did not know what I signed, I was sick, T hadn’t got anything to eat, and I don’t know what I did. The paper was not read or explained to me, nothing, only I would write it before I got the money; he showed me the money, but don’t give it to me first before I signed it. I did not know what I was signing. I know nothing, I couldn’t see nothing, I haven’t got my eye glasses. I was under the impression that I was signing a receipt for $36.' Nobody told me about a general release. I know nothing about it. I did not think I was signing for the whole claim, only the $36, what I have received from Mr. Wilson, that I could get something to eat.” This evidence stands uncontradicted by the defendant or his manager. Neither testified on the trial and no witness at all was called by the defendant, who, however, had marked in evidence the release and then rested. The testimony of the plaintiff as to the passive fraud of defendant in obtaining the release, although not very strong, is sufficient to have justified the jury in finding that the defendant was conscious-at the time that plaintiff did and could not know that he was signing a general release, and that by failing to inform plaintiff of its nature he had been guilty of an intentional concealment of the purport of the instrument. . The jury so found by returning a verdict for plaintiff for the full amount of his claim, less this $36 and a previous payment.

The appellant further complains that the plaintiff’s attorney was improperly allowed to prove that he had a lien upon plaintiff’s cause of action, notwithstanding ■ that the release was exe-' cuted after action commenced. ■ The attorney made proof of the extent of his lien and of notice thereof to defendant before the alleged - settlement, but he had not previously obtained an order of the court to enforce his- lien. The action was on trial and the plaintiff himself sought to ' avoid the release because of fraud or mistake. If he succeeded in such effort the lien of his attorney attached to the verdict, but if he failed, the lien was lost to the attorney. It was proper to try the claims of the plaintiff and óf his attorney at the same time, for then the defeat of plaintiff .would not deprive the attorney of his fights. However, if it .was error to allow the attorney to make effort to establish his lien as against defendant, .such error was cured by the verdict for the full amount of plaintiff’s claim, for the jury has not determined whether the attorney had any lien or not, and were not called upon to determine that question, unless they had. first decided that the plaintiff himself was estopped by his release.

• Another contention of appellant "is that he should have been allowed to withdraw a juror upon-his counsel’s mere statement to the court that defendant was not then within the state, and that such counsel was surprised by plaintiff’s assault upon the release, and that he “ had not the faintest anticipation of any such evidence.” .The counsel did not submit any affidavit as to defendant’s 'absence.. If counsel had hot the faintest anticipation that plaintiff would endeavor to avoid the; estoppel of the release, why did he set forth in the answer, verified by defendant nearly two years ago, three distinct defenses other than the' estoppel by release; first, that the employment was by the week; second, if for the season, then that- custom allowed its termination by. two weeks’ notice, which was given; and. third, that plaintiff was incompetent and unfit to properly perform his agreed services, and for such cause was discharged by defendant. What suggested these defenses to counsel, if it was not his anticipation that he would be met at trial by an assault upon the release?

The judgment and order affirmed, with costs.

Conlan and O’Dwyer, JJ., concur.

Judgment .and order affirmed, with costs.  