Hyperlawhypertext legal database Daversa v. William H. Davidow's Sons Co. 151 N.Y.S. 872

← Cases

Daversa v. William H. Davidow's Sons Co.

151 N.Y.S. 872 Court Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ. Decision date 1915-03-04 English

Delivered by GUY, J.

Contents

Majority

p. 872
DAVERSA v. WILLIAM H. DAVIDOW’S SONS CO., Inc.
(Supreme Court, Appellate Term, First Department.
March 4, 1915.)

Headnote

Master and Servant (§ 30[1] ) — Contract of Employment — Sufficiency of Services — Satisfaction of Employer.
Under a contract of employment as designer of women’s clothing, services to be to the entire satisfaction of the employer, the employé may be discharged at any time, as the employer is the sole judge.
[Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ SO-SO; Dec. Dig. § 30.*]
Appeal from City Court of New York, Trial Term.
Action by Domenico Daversa against the William H. Davidow’s Sons Company, Incorporated. From a judgment for plaintiff, defendant appeals.
Reversed, and complaint dismissed.
Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.
Leonard H. Davidow, of New York City, for appellant.
Maurice J. Katz, of New York City (Charles Weishaupt, of New York City, of counsel), for respondent.

This action was brought to recover for the alleged breach of a written contract whereby plaintiff was employed by defendant as a designer of women’s clothing at $50 a week for the term of one year, plaintiff agreeing— ,

“to devote all his time and attention to their business and to create up-to-date styles to the entire satisfaction of the said Wm. H. Davidow Sons Company.”

Plaintiff testified that one day, after he had entered into defendant’s employment under said written contract, he had a conversation with the president of the defendant company, in which he stated that he had been told the contract was no good and that he wanted a contract for a year, and that defendant’s president then agreed to an oral modification of the contract so as to make it a hiring for one year. Plaintiff then continued working for defendant for three weeks, when defendant’s president discharged him, stating that he was not satisfied with his work. Plaintiff, in his cross-examination, admitted that defendant manufactured a better grade of goods than he had theretofore designed.

At the close of plaintiff’s case, defendant moved to dismiss the complaint, which motion was denied, and an exception taken. The motion was renewed at the close of the entire case, and a motion was also made for the direction of a verdict, which motions were then denied, and no exception taken to'such ruling. The denial of defendant’s motion to dismiss at the close of plaintiff’s case, as well as at the close of the entire case, was error.

The evidence, as introduced by plaintiff, of an oral modification of the written contract, did not alter the provision of the contract that the services rendered thereunder were to be to the satisfaction of the defendant. The services to be performed by plaintiff under the contract,

p. 873
both as originally executed and as orally modified, involved the exercise of taste and'skill as an expert designer, and the provision that the services rendered should be “to the entire satisfaction” of the employer constituted the employer the sole judge thereof. See Crawford v. Mail & Express Publishing Co., 163 N. Y. 404 -408, 57 N. E. 616 ; Diamond v. Mendelsohn, 156 App. Div. 636 , 642, 643, 141 N. Y. Supp. 775 ; Ginsberg v. Friedman, 146 App. Div. 779 , 781, 131 N. Y. Supp. 517 ; Brown v. Retsof Min. Co., 127 App. Div. 368 , 371-373, 111 N. Y. Supp. 594 ; Fuller v. Downing, 120 App. Div. 39 , 42, 104 N. Y. Supp. 991 .

The cases distinguishing between honest dissatisfaction and mere subterfuge have no applicability to the facts of this case, there being no evidence upon which a jury could properly find want of good faith on the part of the defendant.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

Cases cited