Hancock v. Flynn — 28 N.Y. St. Rep. 354

Majority

p. 354

David H. Hancock, Resp’t, v. Kittie A. Flynn, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed December 7, 1889.)

Headnote

1. Contract—Breach of—Evidence.

In an action for breach of defendant’s contract to perform services as dressmaker and general superintendent, for damages to goods and injury to plaintiffs business, where the answer was denial and a counterclaim for wrongful discharge, a witness was allowed 1o testify to the number of girls employed and profits of the business before and during defendant’s employment. Held, error.

2. Same—Books of account.

A witness for plaintiff testified that the accounts were not all kept by him ; some by him and under his direction, The books of account were then put in evidence and witness allowed to testify therefrom to charges against defendant. Held, that the books were not competent evidence against her.

3. Bar—Former adjudication.

A judgment rendered without jurisdiction and which has. been reversed is not a bar to a subsequent action between the same parties.

Appeal from a judgment entered in Onondaga county in the county court of that county upon the report of a referee, in favor

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of plaintiff for $53.50 damages. The action originated in a justice’s court and came into the county court for a retrial, where a reference was ordered.

The plaintiff complained of the defendant “for breach of contract and damages to goods and material; injury to plaintiff’s business to the amount of $200.”

Her answer contained a denial and a counterclaim growing out of a breach of a contract bearing date October 2,1886, between the parties. That contract was as follows:

“ Syracuse, H Y., October 2, 1885.

“ I hereby agree to give Miss Kitty A. Flynn $22 weekly for six (6) months from date, and at the expiration of that time $25 for the next six months. She on her part agrees to accept the position of dressmaker and general superintendent and fulfill the duties, not later than Wednesday, October 7th, ’85.

“ D. H Hancock,

“K A. Flynn.”

Defendant entered under such contract the employment of the plaintiff on the 7th of October, and remained until the month of April, 1886, when she was discharged by the defendant.

The referee finds, as a fact, viz: “Plaintiff had good and sufficient cause for discharging the defendant from his employment.” As a matter of law he finds, viz.: “That said defendant was properly discharged from the employment of plaintiff, and for good and sufficient reasons.” He finds as a fact that the defendant was liable to the plaintiff for negligence and carelessness in respect to the “Blackstock” garment, $20.00; “Fienberg” garment, $10.00; “Harvey” garment,$10.00; “Wardner” garment, $8.00; “ Burns ” garment, $3.50; “ Crawford ” garment, $2.00, making a total of $53.50.

Stone, Gannon & Petit, for app’lt; Waters & McLennan, for resp't.

Whether the plaintiff was authorized to discharge the defendant from his employment or not was a prominent question litigated Upon the trial. The appeal book presents a conflict in the evidence in respect thereto. And the finding of the referee would probably meet with our approval in that regard if we were satisfied that no error was committed in receiving evidence which bore upon the question.

The practical construction which the parties gave to the contract was to the effect that if the defendant injured any goods or caused any loss to come to the plaintiff by reason of her unskillful or improper discharge of her duties, she would sustain such loss.

When Robert Stoddard, a witness for the plaintiff, was upon the stand, he was asked if he had looked up the figures for the year preceding Miss Flynn’s administration, to determine whether the profits were more or less than while she was in the employ of the plaintiff, and he testified that he had; and he also testified that the number of girls kept in the prior

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period was about eight. This evidence was objected to upon the ground that it was immaterial. The objection was overruled and an exception taken. He was then asked what was the number of girls that was kept by her, and his answer was, “ About twelve.” Thereupon the following question was put to him: “ Now whatwere the profits of the business for the preceding season prior to the time when she was employed.” This was objected to, on the ground that there is no foundation laid for the evidence. The objection was overruled, and an exception taken. His answer was: “The profits were $115.47;” thereupon the following question was propounded to the witness: “ What were the profits, if any, during the season the defendant was employed there?” Objected to on the same grounds as before; the same ruling. “The loss was $317.11 for the same period of time as the previous season.” We think this evidence may have borne influentially upon the question of whether or not the plaintiff was warranted in discharging the defendant from his employ, and that its reception was error. Nor do we think the complaint was sufficient to warrant giving this class of evidence for the purpose of recovering damages for a breach of defendant’s contract.

Plaintiff criticises the objection that was taken to the evidence. It appears by the appeal book that when this class of evidence was offered, the defendant objected to it as immaterial, and later on, when the question was propounded, she objected to it upon the ground that there is no foundation laid for the evidence; and when the question was propounded as to whether or not there were any profits during the season that defendant was employed, the objection, as it appears in the appeal book, was in the following language: “Objected to on the same grounds as before.” Under the circumstances, we think the defendant is entitled to insist that the evidence was immaterial, and we are inclined to a conclusion that we cannot say that the evidence produced no injurious effect to the defendant upon the critical and-contested issue relating to her discharge from the employment, of the plaintiff.

2. We think the evidence is very meagre in respect to some of the items of damage allowed by the referee.

3. We are of the opinion that the litigation and judgment had before A. E. Oberlander, a justice of the peace, was not a bar to this action. This court has already held that that judgment was rendered without jurisdiction, and has reversed the same. It was therefore not binding upon the parties at the time of the trial of this action. Flynn v. Hancock, 46 Hun, 368 ; 15 N. Y. State Rep., 145.

4. When the witness Stoddard was asked as to the account kept with the defendant, he stated that the original accounts were in court, as we understand the appeal book. Thereupon he was asked, viz.: “Will you tell us what is due Mr. Hancock, according to those accounts ? ” This question was objected to and the objections were overruled, and the defendant took an exception. Thereupon the witness stated that the accounts were not all kept

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by him; some by him and under his direction. It is then stated that the books were offered in evidence, and objections thereto were overruled aud the defendant excepted, and the books put in evidence, marked “plaintiff’s exhibit A.” The witness was then interrogated: “Will you tell us the amount that she owes Mr. Hancock? ” and he answered: “We charged her $92.81 and credited with $75.18, which leaves a difference of $17.63.”

It appears by the witness’ testimony that he did not make all the entries in the books; some of them were made by his brother.

Under all the circumstances, we think the books were not com-' petent evidence against the defendant.

Judgment reversed on the exceptions and a new trial ordered in the county court of Onondaga county, with costs to abide the event.

Martin and Merwin, JJ., concur.