Leichman v. Jughan — 22 N.Y. St. Rep. 861

Majority

p. 861

Annie Leichman, Resp’t, v. William G. Jughan, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Appeal—When finding of jury conclusive.

In an action on a contract of employment, there was conflicting testimony as to the. time; the plaintiff and her witnesses testifying to one year, the defendant and his witnesses testifying that the employment was only so long as the work done was satisfactory. The jury found in favor of making of the entire contract for a year, Held, that the finding is conclusive in the absence of error committed on the trial.

2. Evidence—When error cannot be assigned.

Where evidence rejected is afterwards admitted, no error can he assigned therefor.

Appeal from a judgment entered upon the verdict of a jury at the Kings county circuit.

Chas. J. Kurth, for app’lt; Baldwin F. Straus (James D. Bell, of counsel), for resp’t.

—The plaintiff claimed that she had been hired for one year as a shirt ironer at a compensation of $12.50, per week by the defendant. That after performing the duties of the employment from the 17th of October 1887, to January 28, 1888, she was discharged without legal cause. The action was brought very soon after the discharge, but the case was not tried until the remaining portion of the year was ended. The trial developed what had been earned by the plaintiff up to the date of the trial, and

p. 862

abalance of $209.18, due plaintiff of the entire contract was proven.

Upon the question of the employment fqr a year the parties differed. The plaintiff and her daughter both testified to a contract for a year. The defendant and his bookkeeper testify that the employment was only so long as the work done was satisfactory, and there was work to do.

There was also proof offered by defendant that it was •customary in all laundries to employ ironers by the piece. The jury found in favor of the making of the entire contract, arid the finding is conclusive, unless some error was committed upon the trial. None is assigned except that it was error to reject proof of custoiri in his employment of ironers. The court rejected such proof by overruling a question put to the defendant but afterwards, and while the defendant was under examination, modified the ruling and permitted the question and it was answered.

The judgment should therefore be affirmed, with costs.

All concur.