#### Rachel Delmage, Respondent, v. Moses R. Crow, Appellant.

(Supreme Court, Appellate Term,

April, 1898.)

Assault and battery.— Rebuttal — Right of the defendant to show that he did not authorize threats by which his agent procured from the plaintiff a release or receipt *“*in full of all claims and demands.”

A servant, who had brought an action against her former master for assault and battery, was allowed to prove upon the trial that when she, upon her discharge, signed a receipt “ in full of all claims and demands,” presented to her for signature at the instance of her master by ■ a fellow servant, the latter told her, In substance, that she (the plaintiff) would be kicked off the private car, where she had been serving her master, unless she signed. The receipt had not at this time been offered' in evidence, but had been pleaded by the master as a release.

. Held, that the court, erroneously refused to allow the master to testify that he had not authorized the making of the -threat, ajs proof of it was calculated to inflame the minds of thei jury and increase the verdict against him.

Delmage v. Crow, 22 Misc. Rep. 511, reversed.

Appeal from a ..judgment of the General (Term of the City Court of the City of Rew York, affiiming a judgment rendered upon the verdiqt of a jury in favor 'of the respondent.

*327Franklin Bien, for appellant.

Frederick E. Anderson, for respondent.

Beekman, P. J.

The respondent sued the appellant to recover damages for an alleged assault and battery. The latter denied the charge, but also set up.by way of affirmative defense a release from the respondent. The paper, however, which is relied upon in sup-1 port of this plea was not under seal, but was simply in the form of a receipt signed by the respondent acknowledging the payment to her by the appellant of the sum of $8.50 “in full of all claims and demands.”

The respondent was a servant of the appellant, and at the time the receipt was given had been discharged by him, and according , to his own testimony the money so paid was for wages which were due to her. ¡No accord and satisfaction with respect to the alleged assault was set up in the answer or proved upon the trial. On the contrary the appellant maintained to the end of the trial that the testimony of the respondent in support of her complaint was absolutely false, and that at the time the receipt was given and the money paid nothing was said upon the subject. The respondent testified , that the receipt in question was sent by the apr pellant to her for her signature two days after the alleged assault, through a fellow servant named Anna Farrell, and on her direct examination she was allowed to give the following evidence with respect to this paper: “ Q. Anna .asked you to sign, it and if you did not you would be kicked off the car? A. Yes.” Counsel for the appellant 'objected, but the '.court overruled the objection and an exception was taken. The respondent at that time was on the private car of the appellant at Chicago, and the latter with his family was then staying at a hotel in that city.

• The appellant was subsequently examined on his own behalf, .when he was .'asked by his counsel whether he said anything to ■ Anna wdth respect to the receipt except to procure the respondent’s signature. The question, however, was excluded by the court upon the objection of counsel for the respondent, to which ruling an exception was taken. The respondent refused to> sign the receipt when it was thus presented to her, but did so .shortly after-wards upon the personal request of the appellant. At the time of this request there were no threats of any kind made by the appellant to her. All that passed between them was an inquiry on his part if she would sign the paper and her ¡assent.

*328We think the court erred in refusing to allow the appellant to disavow any instructions or authority from him to Anna Earrell to make the threat, which, as the respondent testifies,, was associated with the demand made upon her for her signature. Assuming that the respondent was entitled to show all that took place with respect to the receipt for the purpose of explaining her motives in ultimately signing it, the evidence which she gave that she was told she would be kicked off the car if she failed to sign it was calculated to inflame the minds of the jury against the appellant, and it may reasonably be inferred contributed to swell the large verdict which was rendered against him. The jury may well have inferred that the threat came from the appellant, as it is conceded that the paper was brought to the respondent by a person who was authorized by him to present it to her for signa-ture. Under these circumstances' he Vas entitled in all fairness to disclaim any responsibility whatsoever for the offensive and minatory language that was used, The. respondent had testified that she had been most atrociously beaten and maltreated by him. It is true that her story was absolutely denied by Mm, but the jury preferred to. believe -her, and such ¡belief must have been accompaMed by a feeling of deep indignation on their part against him, and doubtless prompted a determination to render such a verdict aa would ptmish Mm as well as compensate her for what she had suffered. It was, therefore, a matter of prime importance to the appellant, and justice demanded no less than that he should be allowed to show that the threat so ¡made was in no way sanctioned by him, especially as the issue was so close that the impression produced upon the jury by the testimony complained of may well have tipped the balance in favor of .the respondent. We think- it was error to exclude the evidence of the appellant ¡upon this point for which the judgment should be reversed. The respondent cannot. reasonably complain of a situation which is of her own creation:

The receipt was not in evidence at the time, and w¡as not offered, until the appellant entered upon tins 'proof. Any explanation which it was desirable she should make with respect to.it properly formed a part of her rebuttal, and had-the objection been made 'on this ground when she was questioned by her counsel with respect to the matter, the court would doubtless have excluded it. Had this course been pursued, and had the reception of the receipt in evidence been 'objected to by the respondént’s counsel when it was offered by the appellant, it would .doubtless have been excluded, as it was not a release, and according to the ¡appellant’s, own testi*329mony had nothing whatsoever to do with any claim on the part of the respondent with respect, to the matters alleged in her complaint. There would then have been no occasion for an explanation of ¡the signing of the receipt such as the appellant was allowed to give. The conclusion cannot be avoided that the evidence with respect to this receipt was injected into the respondent’s case by her counsel rather for the purpose of inflaming the minds of the jury against the appellant than to explain her conduct in signing a paper which had not as yet been offered in evidence and was not before the court and jury.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.