Tuthill v. Smith — 88 N.Y.S. 942

Majority

p. 942

TUTHILL v. SMITH.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. Master and Servant—Action for Wages—Evidence.

Where, in an action by a servant for a balance of wages based on profits of the employer, it appeared that the balance was shown by exhibiting entries in defendant’s books kept by plaintiff and a fellow employs, on the assumption of defendant’s acquiescence by nonrepudiation of the entries, it was error not to allow defendant to show, in contradiction of the assumed acquiescence, what he said to the fellow employs who made the entries, such employs having been asked upon the stand as to the conversation, and denied altogether that there was such a conversation.

p. 943

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

Action by William Nathan Tuthill against' De Lancey T. Smith. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT, JJ.

Walter Carroll Low, for appellant.

William F. Clare, for respondent.

In an action brought for a balance due upon an alleged agreement of somewhat unusal sort to pay the plaintiff, an employé, a commission on monthly profits, the testimony of the two parties being contradictory, the balance was .apparently turned by exhibiting entries in the defendant’s books kept by the plaintiff and a fellow employé on the assumption of defendant’s acquiescence by nonrepudiation of these entries; but the defendant was not allowed to show in contradiction of such assumed acquiescence what he said to the fellow employé who made the entries, although the employé was asked upon the stand as to the conversation, and denied altogether that there was such a conversation. For this error judgment must be reversed, without passing upon the question whether plaintiff could recover for an item allowed him contrary to his bill of particulars.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.