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Wieselthier v. Cohen

116 N.Y.S. 559 Court N.Y. App. Term Decision date 1909-05-07 English

Delivered by PER CURIAM, J.

Contents

Majority

p. 559
WIESELTHIER v. COHEN et al.
(Supreme Court, Appellate Term.
May 7, 1909.)

Headnote

Master and Servant (§ 30[1] )—Discharge of Servant—Grounds.
Where a servant took patterns which he'unjustifiably claimed belonged to him, notwithstanding he was paid for making them by the master, his discharge was proper, though he was hired for a specified term.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 30-36; Dec. Dig. § 30.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
p. 560
Action by Nathan Wieselthier against Julius Cohen and another. Judgment for plaintiff, and defendants appeal.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. J., and DAYTON and GOEE. JJ.
Strasbourger, Eschwege & Schallek, for appellants.
George H. Epstein,'for respondent.

Plaintiff claimed damages for breach of contract of employment from May until November, 1908, at' $22 per week. He was dismissed June 15th. His testimony as to the terms of employment is not corroborated, even inferentially. The reason for his discharge was his taking of certain patterns made by him, which he unjustifiably claimed belonged to him, notwithstanding he was paid for making them by and for the defendants; so that, even if hired for a specified term, his discharge was proper. But the testimony of the defendants and their witnesses and several circumstances in evidence are sufficient to discredit plaintiff, who not only failed to establish his cause of action by a preponderance of proof, but was outweighed by the defendants’ proofs.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.