
    Mary Fleming, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Release interposed as a defense'—it may be impeached for fraud—what justifies a finding to that effect.
    
    When the defendant, in an action to recover damages for personal injuries, pleads as a defense a release executed by the plaintiff, the latter may on the trial impeach such release by proof that it was obtained by fraud or misrepresentation.
    Evidence, which is sufficient to justify a finding that such a release was obtained by false and fraudulent representations, considered.
    
      Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 15th day of July, 1903, denying the defendant’s motion foe* a new trial made upon the minutes.
    
      I. JR. Oelomd, for the appellant.
    
      Abram H. Dailey [Melville J. France with him on the brief], for the respondent.
   Hirschberg, P. J.:

We think the finding of the jury that the release pleaded by the defendant was procured from the plaintiff by false and fraudulent representations was supported by sufficient evidence. The action is for personal injuries sustained by the plaintiff while a passenger upon one of the defendant’s trolley cars on the 10th day of July, 1901. The release executed by her is dated on that day, but appears to have been executed on the first or second day after the accident. It was procured by one of the defendant’s agents, who called upon her for that purpose at her daughter’s house, where she was in bed suffering from her injuries, and who, according to her story, induced her to sign it by representing that he had been sent to her by her physician to make the settlement, with the assurance from the doctor that she would be well in a day or two and able to go home. She was fully corroborated in her story by her daughter. The physician testified that he had no conversation with the defendant’s agent except to tell him where the plaintiff lived; that he sent no message to the plaintiff; did not state that she was not much injured or would be well in a day or two; and did not say to the agent that it would be all right to settle the claim, or make any other statement upon that subject. The plaintiff sent for the doctor before she signed the release, but upon the agent’s assurance that he was telling her the truth, and that he was in a great hurry and had no time to wait, finally consented to and did execute the paper before the doctor came, in the belief that the representations were true. If the jury adopted the plaintiff’s story as the truth, as must be assumed from the verdict, it canliot be said that the rejection of the release as a defense was without adequate support.

It is well settled that a release so procured may be impeached upon the trial by the plaintiff for fraud or misrepresentation. (Shaw v. Webber, 79 Hun, 307; affd., 151 N. Y. 655 ; Dixon v. Brooklyn City & Newtown R. R. Co., 100 id. 170; O’Meara v. Brooklyn City R. R. Co., 16 App. Div. 204; Grockie v. Hirshfield, 50 id. 87; Yaple v. New York, Ontario & W. R. Co., 57 id. 265.)

No question was raised upon the trial or presented upon this appeal as to any duty or obligation resting upon the plaintiff to restore or to offer to restore the insignificant sum received by. her upon the execution of the release.

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.  