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Fourth Department, March, 1910.

[Vol. 137. oral, as to the compensation to be received by the lender in such a transaction, we think that the statute, nevertheless, makes the loan non-usurious; though it would seem that a contract in writing is necessary in order to enable the lender to collect more than six per cent."

Similar provisions contained in statutes in other jurisdictions have received a like construction. (Tribble v. Anderson, 63 Ga. 31, 56; Cameron v. Merch. & Mfgs. Bank, 37 Mich. 240, 244; Matter of Samuel Wilde's Sons, 133 Fed. Rep. 562, 566.)

The authority upon which the defendants mainly rely is Rosen. bluth v. Dunn (41 Conn. 619). The statute* construed in that case prohibited a greater rate of interest than six per cent per annum, “except when the agreement to pay such greater rate of interest is in writing.” The requirement of the statute was explicit and unmistakable, and the court so held.

The defendants' exceptions should be overruled and motion for new trial denied, with costs, and judgment ordered for the plaintiffs on the verdict, with costs.

All concurred.

Defendants' exceptions overruled, motion for new trial denied, with costs, and judgment directed for the plaintiffs upon the verdict, with costs.

Rose M. Urtz, as Administratrix, etc., of RICHARD M. Urtz,

Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

Fourth Department, March 9, 1910.

Fraud — release procured' by fraud — remedies — action on original claim without rescinding release or tendering restitution — Statute of Limitations.

One who has been induced by fraud to execute a release of a cause of action bas three remedies: (1) He may rescind the agreement and prosecute the original claim, but in that case the money received for the release must be returned or tendered before action; (2) he may affirm the compromise agreement, retain the

* Conn. Public Acts of 1872, chap. 16.—[REP.

App. Div.]

Fourth Department, March, 1910. money received under it and recover damages for the fraud; (3) he may ask a rescission in equity, offering in the complaint to restore the money received

if not entitled to retain it. A plaintiff who was induced by fraud to release a cause of action for negligence, and without rescinding the release or returning the money received, tries his action against the defendant as one for the original negligence, cannot recover

although the complaint was based solely upon the theory of fraud. Irrespective of the defect aforesaid, an action for the original negligence cannot

be maintained where two years had expired since the death of the party

injured so that the Statute of Limitations had run. It seems, that in an action for fraud the plaintiff is not under the burden of showing that the claim compromised was valid.

APPEAL by the defendant, The New York Central and Hudson River 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 Lewis on the 25th day of June, 1909, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of May, 1909, denying the defendant's motion for a new trial made upon the minutes.

Henry Purcell, for the appellant.

F. B. Pitcher, for the respondent.

WILLIAMS, J.:

The judgment and order shonld be reversed and a new trial granted, with costs to the appellant to abide event.

The action was brought to recover damages for fraud in the compromise of a claim for damages, resulting from the death of plaintiff's intestate, caused by the negligence of the defendant. The compromise was made between the plaintiff and the claim agent of the defendant, one McCorinick. The fraud alleged consisted of various statements made by McCormick.

The intestate was killed while driving a team across defendant's tracks April 9, 1906. McCormick, on hearing of the accident, wrote the widow expressing sympathy for her misfortune and saying he would call upon her in a few days and would then be able to advise her what could be done. He investigated the accident and reported it fully to Dwyer, chief claim agent of the defendant, among other things saying the widow claimed $10,000 for the death of her husband and the loss of the team, and advising the payment of $2,250 Fourth Department, March, 1910.

[Vol. 137. to the widow. The letter to the widow and the report to Dwyer bear the same date, April 12, 1906. Five days later, April seventeenth, McCormick telegraphed Dwyer, asking what action was to be taken, and saying that attorneys were trying to get the case. Dwyer replied he, McCormick, might negotiate settlement on the best terms he could up to the amount he recommended in his report of April 12, 1906. The next day, April 18, 1906, McCormick called on the widow, told her he had not yet looked up the matter, was going to try to get the company to pay all he could, but did not know how much that would be. He had her make petition and bond for appointment as administratrix, which he had prepared, and on April 20, 1906, she was duly appointed. Withont having any further negotiations with the widow, April 21, 1906, he wrote Dwyer that he liad settled with her for $2,250 and inclosed a voucher to be approved of and signed by the officers of the coinpany (and later by the widow), saying a Syracuse lawyer was after the case and asking Dwyer to forward check for the $2,250 as soon as possible.

The voucher received by Dwyer was duly approved and executed in behalf of the company, and April 27, 1906, a check for the money payable to the widow's order, with the voucher, was sent McCormick. About April 30, 1906, McCormick called upon the widow and then stated to her that he had investigated the accident and learned that her husband was drunk at the time; that he was told before going on the track that the train was coining, and to look ont for it, and replied that he could take care of himself; that a train could be seen by him before going on the track for half a mile either way; that the train was going about eight iniles an hour; that all signals were given ; that the company was not liable for the accident; that the team and wagon were worth about $300, and as the defendant wanted to be liberal with her, he would pay her $500; that if she did not take that sum she would have to go to law and it would be several years before she got anything, and that the lawyers would take it all anyway. And then he counted down $500 in cash and urged her to accept it. She, though demurring, finally accepted the money and executed the release. McCormick forged the widow's name on the check for $2,250, indorsed bis own name on it, and put it to his own credit in

App. Div.]

Fourth Department, March, 1910. his bank, and it was subsequently paid by the bank on which it was drawn. McCormick thus appropriated $1,750 of the money to his own use. He sent the papers back to the company and they understood the settlement had been made for the $2,250. The matter rested in this way for over two years, and then the company discovered what had really been done in this and many other settlements inade by McCormick. He was indicted, pleaded guilty and was sent to prison for this and other transactions of a like nature and is now serving his terın. The widow learned the real facts also as a result of the prosecution of McCormick and brought this action.

The plaintiff had the choice of three remedies to establish what she claimed to be her legal rights.

First. She could rescind the compromise agreement and prosecute her original claim for negligence, but in that case she must before action begun return or tender back the money received by her, the $500.

Second. She could affirm the compromise agreement, retain the money received under it, and seek to recover damages for the fraud.

· Third. She could seek in equity to rescind the compromise agreement, and ask for equitable relief, offering in her complaint to restore the $500 if she was not entitled to retain it.

She elected the second remedy, and brought her action to recover damages for fraud, without returning the money received, the $500. Her complaint set out all the facts, and demanded judgment purely and simply upon this theory. If the trial had been conducted, and the recovery liad upon the cause of action set out in the complaint, very likely the result would have been proper within the cases of Gould v. Cayuga County Nat. Bank (86 N. Y. 75 and 99 id. 333). (See Duquette v. N. Y. C. & 11. R. R. R. Co., 137 App. Div. 412.)

There the plaintiff elected the first of the above remedies, and was defeated upon the sole ground that he had not returned or tendered back the money received under the compromise agreement. The court held expressly that there could be no rescission of the compromise agreement without such return or tender back, and so long as that agreement stood it discharged forever the original con. tract and extinguished all right to any balance due upon it. The Fourth Department, March, 1910.

[Vol. 137. plaintiff then brought a second action, electing the second of the above remedies, and the Court of Appeals held he could recover.

If this case had been tried and submitted to the jury on the theory of the second Gould case, it might be well to consider whether the facts were such as to entitle plaintiff to recover under the law laid down in those cases, but it was not so tried. It was tried as an action for the original negligence. It was so submitted to the jury and the recovery was based upon that theory. There could be no recovery upon such a basis for the reason above stated, and also because this action was not commenced within two years after the decedent's death, and was, therefore, barred by the Statute of Limitations. (Code Civ. Proc. $ 1902.) Under the guidance of the trial court the plaintiff proceeded to give evidence of the accident and death tending to show the death was the result of the defendant's negligence; that the intestate was not guilty of contributory negligence, and the damages resulting to the widow and next of kin from his death, and the defendant gave its evidence relating to these issnes. Evidence was also given as to the settlement, the release and the alleged fraud practiced by McCormick in securing the compromise agreement. After counsel had summed up, the court charged the jury and, at the very beginning of the charge, stated that the action was brought to recover damages for the death of the intestate, and further along said: “The plaintiff can recover at your hands a verdict, if she shows to you by affirmative evidence that her husband met his death without any fault upon his part, and that the acts of commission or omission on the part of this defendant were the direct cause of the death complained of; and in addition to that, if she further shows that this settlement or release was obtained of her through fraud and imposition, then she can recover * * * for damages, which I will charge you hereafter that she may be entitled to.” The court then discussed all these issues of negligence and frand, and finally said: “If you should find that this release is not operative, that this settlement was obtained by fraud, and also find * * * that the deceased was not guilty of negligence, * * * and that this defendant was guilty of * * * negligence * * * which was the direct cause of the injuries and death, * * * then you should reach the question of damages.”

The charge, then, as to damages was not damages occasioned by

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