Bulkley v. Whiting Manufacturing Co. — 203 N.Y. 566

p. 566

Charles E. Bulkley, Respondent, v. Whiting Manufacturing Company, Appellant.

Headnote

Bulkley v. Whiting Manfg. Co., 132 App. Div. 929 , affirmed.

(Argued October 10, 1911;

decided October 24, 1911.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 16, 1909, affirming a judgment in favor of plaintiff entered upon a verdict dismissing defendant’s counterclaim for funds alleged to have been unlawfully appropriated by plaintiff while acting as president of the defendant company.

J. Noble Hayes for appellant.

Ralph S. Rounds for respondent.

p. 567

Judgment affirmed, with costs, on the ground that the plaintiff’s motion for the direction of a verdict in his favor should have been granted; no opinion.

Concur: Vann, Werner, Willard Bartlett and Chase, JJ.

(dissenting). We are all of the opinion that there is but one question in this case, whether the unpaid salary of the treasurer, Salisbury, had. been relinquished by him, or whether it remained a valid claim against the company. A majority of the court think that, as a matter of law, on the evidence it was not relinquished; that, therefore, the plaintiff was entitled to the direction of a verdict, and that the errors in the submission of the case to the jury were immaterial. We are of opinion that the relinquishment by Salisbury of the salary was a question of fact to be determined by the jury.