Jarck v. Baylis — 150 N.Y.S. 486

Majority

p. 486

JARCK v. BAYLIS et al.

(Supreme Court, Appellate Term, First Department.

December 17, 1914.)

Headnote

Master and Servant (§ 70^[1] )—Contract—Performance.

Where plaintiff sued for salary, commission, and expenses alleged to have been earned between May 4th and May 19th, but by his own testimony he neither solicited orders nor made reports after May 8th, he was not entitled to expenses or salary after that date.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. § 70.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Hugo Jarck against George W. Baylis and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed, and new trial granted.

Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ.

Frederick M. Harris, of New York City, for appellants.

Louis Levene, of New York City, for respondent.

The plaintiff sues for salary, commissions, and expenses amounting to $68.80, alleged to have been earned between May 4th and May 19th. From his own testimony it appears that he neither solicited orders nor made reports after May 8th, and it is impossible to see why he should be entitled to any expenses or salary after that date. The trial justice has given judgment for $50, which evidently includes some amounts claimed for work after that date. Moreover, even if he were entitled to such payments, it is impossible to find any basis for allowing him the round sum of $50.

The defendant asks that judgment be reduced to $14.89; but I think that, owing to the confused state of the record, the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.