Koch v. Siff — 154 N.Y.S. 223

Majority

p. 223

KOCH v. SIFF et al.

(Supreme Court, Appellate Term, First Department.

June 28, 1915.)

Headnote

Master and Servant <@=70—Employment Contract—Recovery oe Wages— Deposit.

Where an employé left defendants’ employ because of his fear of strikers, and was not discharged or requested to leave, he was entitled to recover his earned wages and his deposit, but not unearned wages.

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

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

Action by Max Koch against Ephraim Siff and another. Judgment for plaintiff. Defendants appeal. Modified and affirmed.

Argued June term, 1915, before GUY, BIJUR, and PAGE, JJ.

Joseph Sapinsky, of New York City, for appellants.

Mervyn Wolff, of New York City, for respondent.

As the evidence clearly shows that the plaintiff left the employ of the defendants on account of his fear of strikers, who had assaulted him .on the street, and was not discharged or requested to leave, there is no ground for allowing him to recover his unearned wages. On the other hand, the defendants consented to his leaving, and should not be allowed to retain the $50 deposit.

The recovery should therefore be reduced to $62, the amount of the deposit, and $12 for the three days’ work for which he received no pay, plus the costs and disbursements, and, as modified, affirmed, without costs to either party.