Majority
p. 1041WHEATON v. HIGGINS et al. (Supreme Court, Appellate Term. December 7, 1904.) Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSEEEVE, JJ.
Headnote
1. Master and Servant—Employé by the Month—Abandonment oe Employment.Where an employé by the month was not paid for the first month, and voluntarily left the employ about the middle of the second month, he could recover only the actual wages earned; the nonpayment for the first month not being a discharge.
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action for agreed wages by Charles S. Wheaton against James Higgins and others. From a judgment for plaintiff, defendants appeal.
Reversed.
Bigham & Wagner, for appellants.
Wm. Henry Gardiner, for respondent.
The testimony of the witness Wilmoth affords direct proof of the plaintiff’s employment by the defendants, but the recovery was excessive. Concededly, the plaintiff left the employment voluntarily about the middle of the second month of the
p. 1042
period for which he sues, and, the employment being by the month, as he testifies, he was entitled to wages only for services for the full period. The nonpayment of wages for the prior month was not tantamount to a discharge, and the recovery should have been limited to the actual wages earned.
Judgment reversed, and new trial ordered, with costs to appellants to abide the event, unless respondent stipulates to reduce recovery to $40, in which event the judgment, so reduced, will be affirmed, without costs.