Lipshutz v. Proctor — 95 N.Y.S. 566

Majority

p. 566

LIPSHUTZ v. PROCTOR.

(Supreme Court, Appellate Term.

October 27, 1905.)

Headnote

Master and Servant—Contract of Employment—Termination by Master.

A contract of employment, terminable for specified reasons, of the existence of which the employer was to be the sole judge, gives the employe the right to the exercise by the employer of his personal judgment on the existence of the specified grounds, and it cannot be terminated by another employé on his own judgment.

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

Action by Isabelle May Fipshutz against Frederick F. Proctor. From a judgment for defendant, plaintiff appeals.

Reversed.

Argued before SCOTT, P. J., and BISCHOFF and FITZGERALD, JJ.

Charles Goldzier, for appellant.

William F. S. Hart, for respondent.

The contract for services was terminable for specified reasons, and as to the existence of grounds for a termination within the agreement it was provided that the defendant should be “the sole arbiter and judge.” At the trial, the defendant rested his case upon

p. 567

the plaintiff’s proof, and the justice dismissed the complaint upon the merits.

The proof thus furnished afforded no support for a defense of justification in the matter of the plaintiff’s discharge, since, under the contract, she was clearly entitled to the defendant’s exercise of his personal judgment upon the question of the existence of grounds, as specified, for a termination. This condition was not met by a discharge at the hands of another employé of the defendant, upon his own judgment; and nothing further is suggested by the evidence.

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