Lacy v. Getman — 17 N.Y. St. Rep. 603

Majority

p. 603

Thomas Lacy v. Sophronia A. Getman.

(Supreme Court, General Term, Fourth Department,

Filed July 13, 1888.)

Headnote

1. Master and servant—Employment for one year—Death of employer—Continuance of work—Entitled to recover for full term.

When a person employs another to work for him for one year at a stated price and during the year the employer dies but the person employed continues to work until the expiration of the year, he is entitled to recover the sum agreed upon with interest.

2. Verdict—When not set aside.

When the evidence was conflicting upon a certain point the verdict of a jury on such point will not be set aside by the appellate court as contrary to the evidence.

p. 604

3. Appeal.

The supreme court will upon a second appeal follow its'former decision on questions that are the same as before.

Appeal from a judgment entered upon a verdict of the Jefferson county circuit in favor of plaintiff for $265.50,. and also from an order denying a motion for a new trial: made upon the minutes. See opinion on former appeal, 35-Hun, 46.

Darwin & Brown, for app’lt; W. A. Nims, for resp’t.

Defendant’s answer consists of denials,

and for a defense “the defendant alleges that after July 17, 1882, the date of the death of John H. McMahan, the plaintiff was in the service and employ of one Lany McMahan, the widow of John H. McMahan, and so continued until March 1, 1883.” No other defense is stated in the answer, and the plaintiff, therefore, by answer was not apprised of any intention on the part of the defendant to insist that by virtue of the statute of frauds the contract alleged in the complaint was void. However, evidence was given upon the subject of whether the contract was to be performed within one year from the time it was made. Upon that-subject there was a conflict in the evidence, and the trial judge very properly submitted the question of fact to the-jury. Their, verdict is to the effect that the contract was made on the first of March, for a year’s service. Under the-evidence given, we think that question was one of fact, upon which the verdict of the jury should be regarded as final. Kavanagh v. Wilson, 70 N. Y.,177; Koehler v. Alder,. 78 id., 287; Wohlfahrt v. Beckert, 92 id., 491.

We must regard the verdict of the jury as finding that, there was a contract for one year’s service, and that the-plaintiff entered upon the performance of the contract, and continued in the execution of the contract until the end of the year, although the employer died on the seventh of July, during the running year of the contract; the plaintiff continued in the execution of the contract for a year’s services, and the jury have awarded him the amount which the contract stipulated he should receive, with interest thereon.

I think the decision made by the court in Lacy v. Getman ( 35 Hun, 46 ), covers the other questions involved in this-appeal, and that it is our duty to follow our decision then, made, and that, so far as this court is called upon to pass upon the question, it is our duty to adhere to the opinion delivered by Mr. Justice Boardman on the occasion referred to. I, therefore, advise an affirmance of the judgment and order appealed from. The trial judge, apparently with care and caution, and with accuracy, followed the tenor of the doctrine laid down by Mr. Justice Boardman in the opinion, to which allusion has been made.

Judgment and order affirmed, with costs.

Fot,t,ett and Martin, JJ., concur.