Stevenson v. Opoznauer — 157 N.Y.S. 147

Majority

p. 147

STEVENSON v. OPOZNAUER.

(Supreme Court, Appellate Term, First Department.

February 10, 1916.)

Headnote

Customs and Usages <@=>14—Employment Contract—Specific Term—Custom—Evidence.

In an action by a salesman to recover under an unambiguous contract oí employment for a specific term, it was error to permit the defendant to introduce evidence of a trade custom whereby salesmen were employed only from year to year.

[Ed. Note.—For other cases, see Customs and Usages, Cent. Dig. § 29; Dec. Dig. <@=>14.]

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

Action by William H. Stevenson against Jack Opoznauer. From a judgment for defendant, plaintiff appeals. Reversed.

Argued January term, 1916, before GUY, BIJUR, and GAVEGAN, JJ.

Mervyn Wolff, of New York City (Benjamin Jaffe, of New York City, of counsel), for appellant.

Goldsmith, Rosenthal, Mork & Baum, of New York City (Max Horowitz, of New York City, of counsel), for respondent.

The only question involved on this appeal is whether defendant was properly permitted to introduce evidence of an alleged custom of the trade to employ salesmen only from year to year, in face of the express unambiguous contract testified to by the plaintiff that he was employed for a specified period. It is not necessary to cite authorities for the well-established rule that the admission of such evidence was, under the circumstances, error which prejudiced the plaintiff’s case.

Judgment reversed, and new trial granted, with $30 costs to appellant to abide the event. All concur.