
    James R. Purdy, Resp’t, v. The Rome, Watertown and Ogdensburgh Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 12, 1889.)
    
    Negligence—Agreement releasing employer prom liability—When NOT A BAR TO ACTION.
    In an action to recover for personal injuries sustained by plaintiff while in defendant’s employ, based on the alleged negligence of defendant in not furnishing to plaintiff proper implements and appliances for the purpose of his work, the defendant alleged a paper writing signed by plaintiff, wherein he agreed that defendant should in no case be liable to him for any damage or injury to his person or property by reason of its negligence, claiming that the same was a bar to a recovery. The instrument was signed while plaintiff was in defendant’s employ. His employment preceded its execution. When signed there was no agreement as to any future employment. It was without any new consideration. Held, that the agreement was without sufficient consideration to support it, and is not a bar to the action.
    Appeal from a judgment entered in Oneida county on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes, and heard in this court on a case containing all the evidence. The action was to recover for personal injuries sustained by the plaintiff, while in the defendant’s employ. It was based on the alleged negligence of the defendant in not furnishing the plaintiff with proper implements and appliances for the purposes of the work in which he was employed.
    
      G. S. Klock, for resp’t; Edmund B. Wynn, for app’lt.
   Martin, J.

A careful examination of the evidence in this case has led us to the conclusion that it was sufficient to justify the court in submitting the question of the defendant’s negligence to the jury. Ellis v. N. Y., L. E. and W. R. R. Co., 95 N. Y., 546; Gottlieb v. N. Y., L. E. and W. R. R. Co., 100 id., 462.

Nor do we think it can be held as a matter of law that the plaintiff was guilty of contributory negligence. Under the evidence, the question of plaintiff’s contributory negligence was for the jury, and was properly submitted to it. Thurber v. H. B., M. and F. R. R. Co., 60 N. Y., 326; Massoth v. D. and H. C. Co., 64 id., 529; Stackus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Halsey v. R., W. and O. R. R. Co., 12 N. Y. State Rep., 319, aff’d in court, of appeals, March, 1889.

The defendant claims that the writing or paper signed by the plaintiff, wherein it was stated that he agreed that the defendant should in no case be liable to him for any damage or injury to his person or property by reason of the negligence of the defendant or its employees, was a bar to the recovery in this action. This instrument was signed by the plaintiff while he was in the defendant’s employ. His employment preceded the execution of the agreement, and continued until the time of his injury. When it was signed, there was no agreement between the parties as to any future employment of the plaintiff by the defendant. It was without any new consideration whatever. The plaintiff did not read it, nor did he know its contents. Without deciding or discussing the question as to the validity of such an agreement, when founded upon a good and sufficient consideration, and fairly understood by the parties, we are of the opinion that this agreement was without a sufficient consideration to support it, and that the trial court committed no error in holding that it was not a bar to this action.

The appellant has called our attention to no errors of the court in the admission or rejection of evidence, or in its charge to the jury, and we have found none that would seem to require discussion or justify a reversal of the-judgment thereon; hence, it follows that the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., not sitting.  