#### Teodor Arbutina, an Infant, through His Guardian ad Litem, Dmitar Arbutina, Respondent, *v.*Pittsburg Contracting Company, Appellant.

Second Department,

*June*11, 1915.

Master and servant—negligence — defense — general release — separate trial of issue raised by general release.

Action for personal injuries. Evidence examined, and held, insufficient to avoid a general release pleaded by the defendant.

A court may in the exercise of its discretion order a separate and prior trial of the issue raised by the affirmative defense of a general release in an action for negligence.

Appeal by the defendant, Pittsburg Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester *281on the 22d day of October, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

*John Ambrose Goodwin,*for the appellant.

*Humphrey J. Lynch,*for the respondent.

Junks, P. J.:

Necessarily the general verdict for the plaintiff -implies that the jury were satisfied with the proof adduced to avoid the general release pleaded by the defendant. As I think that such proof was not sufficient, I advise that the judgment and order be reversed and that a new trial be granted.

There was no question as to the execution and delivery of the said instrument or the receipt of $300 at the time. ’ The plaintiff contends that Schwedo, the agent of the defendant, told him that the $300 was paid to him because he was incapacitated temporarily by the accident; in other words, that it was in lieu of what wages he might have earned save for the accident. This contention rests upon the uncorroborated testimony of the plaintiff in contradiction of the terms of the release and of the positive testimony of Schwedo, who procured the release. I might hesitate to disturb the finding of the jury upon this issue if the clash was merely between the testimony of the plaintiff and that of Schwedo, fortified by the general release. But the plaintiff was confronted by his testimony at a former trial of this action, which showed that he had repeatedly said that he had received the $300 “ for his injuries.” The variance is too important to the vital issue of the general release to be negligible. The plaintiff’s effort at reconciliation or explanation strikes me as lame rather than successful. On the whole his proof, even making full allowance for his comparative unfamiliarity with the English tongue and his complaint against interpreters, is so unsatisfactory that I think that the issue of the general release should be submitted to another jury.

Lately we have commented upon the natural tendency of a jury to disregard the issue raised by the plea of a general release when that issue is tried with the issue of negligence. And we suggested in explanation, that the jury may lose sight *282of legal right in its conclusion that the consideration for the release was wholly inadequate when considered as compensation for the injury. *(Piuntkosky*v. *Harrington’s Sons Company,*167 App. Div. 117.) Even the trained mind of the court may be not unmindful of the hardship that may result from successful plea of a general release. Thus in the case at bar the learned court, who tried the case admirably, after saying in its charge, “Keep in mind also that if the $300 was received by the plaintiff as compensation for his injuries he cannot recover and that ends the case, no matter how paltry the sum may seem to you or how severe the injuries may be,” added by the next sentence, “ If you should say that Arbutina took $300 in *payment*for *injuries consisting of a broken leg, an injured hip, a broken jaw and seven teeth knocked out, your verdict must be for the defendant.*If, however, you *believe that Schwedo told him, as I have said before, that it was for his wages and by that means got him to accept it and sign the paper,*then you take up the question of negligence.” The plaintiff contends that he was an infant at the time of the execution of the release — August 1, 1912. He testifies that he became of age on June 12, 1914. There is no other proof. On the other hand, Schwedo testifies that the plaintiff said that he was twenty-one years old, and Dr. Squires, proprietor of a sanitarium at Ossining, who received the plaintiff, testifies that the plaintiff told him that he (the plaintiff) was twenty-one years old in March, 1912. This testimony was not denied. I think that this case is an illustration of the propriety of an exercise of discretion by the court to order a separate and prior trial of the issue raised by the affirmative defense of a general release in an action for negligence. *(Warner*v. *Star Co.,*162 App. Div. 458; *Piuntkosky*v. *Harrington’s Sons Company, supra.)*I express no opinion upon the question of the liability of the defendant.

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Thomas, Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.