Edelsohn v. Singer Manufacturing Co. — 1 Misc. 166

Majority

p. 166

Edelsohn v. Singer Mfg. Co.

(New York Common Pleas — General Term,

November, 1892.)

Headnote

The plaintiff, on' January 14, 1892, entered defendant’s service as collecting salesman, at which time he deposited with defendant one hundred dollars, to secure the faithful performance of his duties ; this sum was to be returned to him, pursuant to the terms of the certificate of deposit, sixty days after the termination of his employment. He continued as such collecting salesman until the succeeding April twelfth, when he was appointed by defendant its canvassing agent, and remained in the latter capacity until June twenty-fifth, when he left defendant’s employ. In an action, brought within less than sixty days thereafter, for the recovery of said one hundred dollars, it appeared by said certificate, offered in evidence by plaintiff, that said deposit was to secure the honest and faithful performance of plaintiff in his duties as collecting salesman or otherwise. Held, that though the duties at first assigned plaintiff were changed on April twelfth, the employment, from his own admission, was continuous and without interruption, until June twenty-fifth; that upon the facts proven, plaintiff could in no event succeed in the action, and a new trial would be a useless formality.

" Appeal from a judgment for plaintiff, recovered in a District Court in the city of New York.

Action for money had and received; the defense being that it was prematurely brought.

Samuel I. Frankenstein, for plaintiff (respondent).

Booraem, Hamilton & Beckett, for defendant (appellant).

The evidence adduced for plaintiff on the trial did not authorize his recovery, and the judgment should be reversed.

p. 167

It appears that on January 14, 1892, plaintiff: entered defendant’s service as “ collecting salesman,” at which time, as a condition of his employment, he deposited with defendant §100, to secure the faithful performance of his duties; which sum was to be returned to him, pursuant to the terms of the certificate of deposit issued to him by defendant, sixty days after the “ termination of his employment.” He continued as such collecting salesman until the succeeding April twelfth, when he was appointed its canvassing agent, and remained in the latter capacity until June twenty-fifth, when he quit defendant’s further service. This action was commenced Within less than sixty days thereafter.

That the security deposited was intended by both parties to extend to the performance of plaintiff’s duties other than those of a “ collecting salesman,” is apparent from the language “ to secure the honest, and faithful performance of his duties as collecting salesman, or otherwise,” which occurs in the certificate of deposit introduced in evidence for plaintiff; and, though the duties at first assigned were changed on April twelfth, the employment, from plaintiff’s admission, was continuous and' without interruption until June twenty-fifth. True, plaintiff testified that he quit the service on April twelfth, and at once re-entered it as canvassing agent, but this involves no more than his own interpretation of the effect of the change in the character of his employment, with which we do not agree.

Upon the facts, therefore, plaintiff can in no event succeed in this action, and a new trial would be a useless formality. The judgment is reversed, and judgment absolute for dismissal of the complaint rendered, with costs below, and of this appeal, to defendant.

Pryor, J., concurs.

Judgment accordingly.