Penny v. Kaldenberg — 18 N.Y. St. Rep. 961

Majority

p. 961

Oliver V. Penny, Resp’t, v. Frederick J. Kaldenberg, App’lt.

(New York Superior Court, General Term,

Filed October 25, 1888.)

Headnote

Evidence—Admission—What does not amount to.

On the trial of an action in which it was plain that the plaintiff was in fault for not having rendered an account of certain expenditures, the plaintiff testified that he did not make out and deliver to the defendant at a certain time a statement of the moneys paid for traveling expenses, which expenses were the subject of the account. Meld, that this was not an admission that he had not informed the defendant in another competent manner.

Appeal by defendant from judgment entered on verdict of jury and from order denying motion for new trial made upon the minutes.

L. B. Treadwell, for app’lt; A. Loring Cushing, for resp’t.

This was an action by plaintiff to recover from defendant wages stipulated by defendant in a special contract to be paid to plaintiff for services.

The first position taken for defendant on the appeal raises a question that was not presented on the trial.

The second position, that no discharge of plaintiff was shown presented a question to be submitted to the jury.

The third position was that the plaintiff being bound to account to defendant for his traveling expenses, defendant’s demand for the account shows that he did not waive the rendition thereof. This is not to be sustained ; for if the defendant made such a demand, it is consistent with the testimony in the case that the demand was after the defendant had learned from plaintiff the amount and objects

p. 962

of the expenditures, and that plaintiff had communicated this in a manner that was at the time satisfactory to the defendant. The defendant’s testimony showed that plaintiff had given some account, for the former said to the latter that the expenses were sixty-two per cent of the sales.

The plaintiff said he did not make out and deliver to Mr. Kaldenberg; the defendant, upon the plaintiff’s return from his trip, a statement of the moneys paid for traveling expenses.

This was not an admission that he had not informed the defendant in another competent manner. There was no evidence that the defendant exacted that. the plaintiff should make out and then deliver a statement.

There was an exception, the validity of which, so far as its form was concerned, is doubtful, to the charge of the court that if the jury should find for the plaintiff, the amount of the verdict should be $729. The defendant’s counsel claimed that the charge was erroneous, for tfye reason that the plaintiff should have been charged with the amount of traveling expenses, which was. about $634. That, however, depended upon whether the plaintiff had accounted to the defendant as to the traveling expenses, and whether he had, was left to the jury, and it was left in a proper manner.

Judgment and order appealed from affirmed, with costs.

Truax, J., concurs._