Kosztelnik v. Bethlehem Iron Co.

• Decision Date: 12 November 1898
• Citation: 91 F. 606
• Parties: KOSZTELNIK v. BETHLEHEM IRON CO.
• Court: U.S. District Court — Eastern District of New York

91 F. 606

KOSZTELNIK v. BETHLEHEM IRON CO.

United States Circuit Court, E.D. New York.

November 12, 1898

Catlin & Nekarda, for plaintiff.

Lord Day & Lord, for defendant.

THOMAS District Judge.

This action is brought by the plaintiff to recover for personal injuries alleged to have been received by reason of the negligence of the defendant. The answer alleges as a separate defense that the plaintiff, for a valuable consideration executed a release, discharging the cause of action. Upon the defendant's motion, the court directed the plaintiff to reply to this defense. Thereupon a reply was served by the plaintiff, which contains two subdivisions, as follows:

'First. He denies on information and belief all the allegations in said second defense contained. Second. For a further reply to said defense, plaintiff alleges that, if the instrument in writing described in said answer was signed or executed by him, his signature thereto was obtained by the fraud and misrepresentation of defendant's agents, in suppressing and concealing from him the fact that the same was a release, and in falsely misrepresenting the contents of the same to the plaintiff, and in inducing plaintiff to sign the same without knowledge of its contents, he being unable to read said paper, by reason of his ignorance of the English language; and the said instrument was executed in consequence of such fraud and misrepresentation, and not otherwise.'

A motion is now made 'for an order striking out paragraph 1 of the reply as sham, and for a judgment upon the remainder of the said reply as frivolous. ' It appears from the evidence presented upon this motion that the plaintiff is unable to speak or read the English language; but the defendant's evidence tends to show that the release which was in the English language, was at the time of its execution read to the plaintiff in his native tongue, and the nature of the contents thereof explained; that the plaintiff thereupon stated that he understood it, and that it was satisfactory; and that he forthwith signed the same; and that the plaintiff received the sum of $50 in money as a consideration for said release. It is urged on the part of the plaintiff that, on account of his ignorance of the English language, he can only deny upon information and belief that he executed the release. By reason of the peculiar facts stated in this case, it is sufficient that the denial of the...