#### Robert J. A. Kreuzen, Resp’t, *v.*The Forty-second Street, Manhattanville & St. Nicholas Avenue R. R. Co., App’lt.

*(City Court of New York, General Term,*

*Filed March 10, 1891.)*

1. Negligence—Street railroads.

While plaintiff was riding on one of defendant’s cars the driver jumped off and the conductor ran through the car shouting that he was not going to be killed. Plaintiff followed him to the platform, and was then knocked off by a collision of some kind not explained. *Held,*that the facts, unexplained, showed a clear breach of duty on the part of the carrier, affirmatively establishing negligence.

.2. Same—Release.

A release of damages, until disaffirmed by tendering back the consideration received therefor, is valid even against an attorney’s lien where the procedure necessary to protect his interests has not been followed.

Appeal from entered on verdict in favor of plaintiff

*William C. Trull,*for app’lt; *S. F. Hyman,*for resp’t.

Ehrlich, Ch. J.

The evidence shows that the driver jumped off and the conductor ran towards the rear of the car shouting that he was not going to be killed, and as the plaintiff followed him out and had his foot on the back platform he was knocked off and severely injured. What knocked him off does not distinctly appear, but it was evidently a collision between the car and something else and not of a sudden and unexpected character, but something likely to happen. The danger must have been imminent, for it caused the driver and conductor to abandon all control of the car, leaving the occupants to their fate.

The plaintiff could not explain the whys and wherefores of the . accident. He found everything in confusion, and that those having control were seeking safety in flight, and naturally undertook to follow their example, and before he discovered the real cause of the excitement he was thrown down, stunned and injured. It was an unusual occurrence, one which the driver and conductor might have explained, but did not. Unexplained, the facts proved a clear breach of duty on the part of the carrier, affirmatively establishing negligence. Shearman & Red. on Neg., § 59.

The rule that negligence will not ordinarily be implied from the mere occurrence of an accident does not therefore apply. It was not error on the part of the trial judge in declining to charge that it did apply to this case. All the other requests were properly disposed of, and the charge itself was unobjectionable.

The difficulty in the case, is presented by the. general release executed by the plaintiff and set up in the supplemental answer. No fraud in respect thereto was practiced on the plaintiff. He received all he expected to get, and the only grievance is that his .attorney was not paid. The law prescribes the manner in which the attorney may protect his interest in the litigation, and the procedure is stated in *Oliwill*v. *Vanderhalven,*26 N. Y. State Rep., 115 ; 7 N. Y. Supp., 99.

This practice was not followed, so that the attorney is not in •a position to assert his rights upon this appeal

*462The plaintiff did not disaffirm, the release by tendering. back the consideration for it, and cannot sustain his recovery. *Cobb*v. *Hatfield,*46 N. Y., 533 ; *McMichael*v. *Kilmer,*76 id., 46 ; *Schiffer*v. *Dietz,*83 id., *300; Gould*v. *The Cayuga Bank,*86 id., 75.

The release unrescinded for the fraud alleged was valid as to the plaintiff and effectual against the attorney’s lien for nonconformity to prescribed practice.

For these reasons the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Wyck, J., concurs.