Barker v. Conley ( 1935 )

The plaintiff sued in negligence and the defendants moved to dismiss on affidavits setting up a general release for a considerable sum of money paid. The plaintiff said in replying affidavits that he had been deceived into believing that he would get more money and that the paper he signed was not the end of the matter — a release. A question has arisen on the practice under rule 108, of sending these questions of fact to a jury on the affidavits instead of an answer.

Former section 421 of the Civil Practice Act read: "Issues defined and enumerated. The issues, for the purpose of a trial, are those only which are presented by the pleadings. An issue arises where a fact or a conclusion of law is maintained by one party and controverted by the other. Issues are of two kinds: 1. Of law; and 2. Of fact."

Chapter 372 of the Laws of 1921 repealed section 421. Senate bill No. 858 in section 6 contained in brackets the following, "[Sec. 284, 421 and 1444, as renumbered 1482 of the C.P.A. are repealed to agree with Civil Practice Rules 106-111]."

The Civil Practice Rules adopted September 21, 1920, carry this note in the printed volume: "The rules embraced in this pamphlet were adopted by the Convention to Consider and Adopt Rules of Civil Practice on the 21st day of September, 1920, subject, however, to such amendment as might be deemed necessary after the action of the Legislature on the suggestions of the Committee to Consider and Present Amendments to the Civil Practice Act."

Rule 108 was then in the exact language it is today. In part it is, "* * * or it may direct that the questions of fact, which shall be clearly and succinctly stated in the order, be tried by a jury or referee, the findings of which shall be reported to the court for its action; or it may overrule the objections, and in its discretion may allow the same facts to be alleged in the answer as a defense. * * *."

In Herzog v. Brown (217 App. Div. 402 [First Dept.]) WAGNER, J., approved this practice. In an action on contract, the affidavits on a motion to dismiss set up the Statute of Frauds. The disputed question of fact the court held should be tried by a jury "as provided in rule 108." The order was affirmed by this court (243 N.Y. 599, 600), although in answering the certified question, "Does the answering affidavit in opposition to said motion, state facts sufficient to raise an issue of fact," etc., we apparently did not consider the question of practice.

In Mohamed v. Unifruitco S.S. Co. (223 App. Div. 791 [Second Dept.]) the question of a release was submitted to a jury under this rule 108. (Also Perloff v. Kelmenson, 226 App. Div. 696 [Second Dept.]; Galanti v. Brady Gioe, Inc.,211 App. Div. 858 [Second Dept.]; and Rizzuto v. United StatesShipping Bd., 213 App. Div. 326 [same department].)

Clark on Code Pleading (Ch. 8, p. 386, § 88) says of "Motions Raising Issues of Fact," "The procedure seems highly desirable. It is thus possible to raise in short and simple form issues on matters of a continually recurring sort, where usually the facts are clear and the questions are usually of law only."

Carmody's New York Practice (Vol. 3, pp. 2295 et seq., § 1057) refers to this practice under the rules. On the other hand, Prof. Alden's edition of Abbott's Practice and Forms points out the extreme caution which should be used in sending questions of fact to a jury when they are raised in affidavits instead of by answer in the manner provided by section 422 of the Civil Practice Act and the following sections. (3d ed. [1925], vol. 2, pp. 1719, 1720.)

The orders appealed from must be modified, however, because the question to be submitted to the jury does not comply with the rule. This must be clearly and succinctly stated. Every question of fact cannot thus be submitted; it must be one which if decided in favor of the defendants ends the litigation. For this purpose was the Practice Act amended and the rule made. To terminate lawsuits by the speedy disposition of questions in bar of recovery was the end in view. A general release, the Statute of Limitations or of Frauds are instances, if found to apply, which end all further proceedings.

The justice at Special Term denied the motion to dismiss the complaint because of a general release, with ten dollars costs. This he might have done if he had stopped here, because a question of fact had arisen on the affidavits. He went further, however, and ordered a separate trial of the following questions of fact, viz.:

"Whether the plaintiff at the time of executing the release was aware of its nature and effect;

"Whether plaintiff was induced to execute and deliver said release in reliance upon false and fraudulent representations made by the defendants to the effect that by the execution and delivery of the same he was not releasing his cause of action against said defendants; and

"Whether said plaintiff executed said release under duress."

The Appellate Division modified the order by reframing the questions to read: "Ordered that a separate trial by jury be had of the issue arising upon the defense of release," and directing that no decision of the motion be made until after the verdict of the jury. This, as above stated, was not a compliance with the rule. No question of fact has been clearly and succinctly stated in this order. The issue is submitted to the jury. What is the issue? It must be stated in the order, not left to be determined by reading the affidavits. The order must state the questions of fact. From the order of the Appellate Division we cannot tell what the "issue arising upon the defense of release" is. We must look to the affidavit for this and then minds may and have differed as to that issue. The order must state the fact to be decided and when decided it must be decisive one way or the other. Both courts were partly in error. The only question which could be submitted was the fraud, if any, in procuring the release. The Special Term judge had it right in his second question submitted, Was the plaintiff induced to execute and deliver said release in reliance upon the false and fraudulent representations made by the defendant to the effect that by the execution and delivery of the same he was not releasing his cause of action against said defendants? This is the one and only question. No duress was shown and the plaintiff's ignorance of what he was signing is immaterial unless he was deceived in doing so. (Metzger v. AEtna Ins. Co., 227 N.Y. 411; Pimpinello v.Swift Co., 253 N.Y. 159.)

The orders should be modified in accordance with this opinion, and as so modified affirmed, without costs.

The questions certified are answered as follows:

"1. Do the plaintiff's answering affidavits create a question of fact to be submitted to a jury?" We answer, "Yes."

"2. Did this court err, as matter of law, in making its order of October 3, 1934?" We answer, "Yes, in the manner of reframing the questions as herein stated."