Julie v. Loomis-Manning Filter Distributing Co.

Majority

p. 227

Roy E. Julie, Respondent, v. Loomis-Manning Filter Distributing Company, Appellant.

First Department,

June 2, 1916.

Headnote

Master and servant — action to recover for services rendered — defense that employee agreed that salary need not he paid in full.

In an action against a corporation to recover a balance of salary alleged to be due, it is error to strike out a defense, setting forth the fact that, the defendant being in debt, the plaintiff agreed that he should not be paid in full until the debt of the corporation was settled.

Appeal by the defendant, Loomis-Manning Filter Distributing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th day of December, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Oscar B. Houston, for the appellant.

Charles G. F. Wahle, for the respondent.

The action is brought to recover a balance due upon salary from January 19, 1914, to the 1st day of August, 1914. There is no question that the salary for that period was $1,292.20, and that $350.10 has been paid, so that there remains unpaid of that salary $942.10. In the defendant’s third amended defense in the amended answer it is stated that in December, 1913, a certain fire loss of a corporation to which the defendant was

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related had caused the withdrawal of funds from the defendant, and that the defendant informed the plaintiff’s assignor at that time that the salary could not be paid as theretofore; that the plaintiff’s assignor was at liberty to leave, and that if he remained it must be with the understanding that his salary would not he paid in full until such time as such fire loss^Jfcs satisfied, and that in the meantime defendant would pay such part of such salary as from time to time defendant was able to pay. It is further alleged that the plaintiff’s assignor agreed to remain upon these conditions, and that the fire loss had not been settled at the time of the commencement of this action, and the defendant had paid such part of plaintiff’s assignor’s salary as it was able to pay. This defense was stricken' out upon plaintiff’s motion over defendant’s exception. The striking out of this defense, in our opinion, constituted error, as it pleaded a valid enforcible modification of the previously existing terms of employment and effectually barred the plaintiff’s assignor from recovering any more of his accruing salary than the defendant was from time to time able to pay until the fire loss referred to was settled.

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

Olarke, P. J., Laughlin, Scott and Davis, JJ., concurred.

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