Drake v. Hansen — 62 N.Y.S. 433

Majority

p. 433

DRAKE v. HANSEN et al.

(Supreme Court, Appellate Term.

February 8, 1900.)

Headnote

Master and Servant—Action for Services—Trial.

Where, in an action for services, the question at issue was whether the party employing plaintiff did so on his own account, or on behalf of defendants, and the case made by plaintiff left the evidence in equipoise, while defendants emphatically denied the employment, or that plaintiff has rendered any services for them, the court was justified in rendering judgment for defendants.

p. 434

Appeal from municipal court, borough of Manhattan, First district.

Action for services by Alphonso G. Drake against Minnie A. Hansen and another. There was a judgment for defendants, and plaintiff appeals.

Affirmed.

Argued before FREEDMAN, F. J., and MacLEAN and LEVEN-TEHTT, JJ.

Kisselburgh & Bennett, for appellant.

Knevals & Perry, for respondents.

The question of fact involved in this appeal is whether one Spencer 0. Pratt employed the plaintiff as traveling salesman on his own account, or on behalf of the defendants. While the plaintiff and Pratt pretend that the employment was for the defendants, we search the record in vain for any evidence of hiring. Kor is this failure of proof supplied inferentially by the evidence concerning the services rendered. At the end of the plaintiff’s case, conflicting testimony of his acts and Statements pointed with equal consistency to either of the two alleged employers. The only solution of this uncertainty is found in the defendants’ emphatic denial of any employment by them, and of the rendition of any services for them. Obviously, under those circumstances, the court was justified in finding for the defendants. The judgment should be affirmed.

Judgment affirmed, with costs to the respondents. All concur.