Reynolds v. Roosevelt — 30 N.Y. St. Rep. 369

Majority

p. 369

John Reynolds, Resp’t, v. John E. Roosevelt, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 10, 1890.)

Headnote

1. Master and servant—Servant cannot recover eor services to THIRD PERSON.

A servant who has entered i::to a general employment to serve his master and his family generally cannot, in the absence of consent from his master to serve another, recover for services performed for such master’s brother.

2. Same—Evidence.

In an action to recover for such services the plaintiff cannot testify to a conversation with his master in the absence of defendant.

Appeal from judgment in favor of plaintiff and from order denying motion for a new trial.

Action to recover for services as coachman and hostler for defendant at twenty dollars per month.- Plaintiffb testimony showed that he had been employed by defendant’s brother in the same capacity at thirty dollars a month; that he was to give him his entire time and that he waited on the members of the family generally.

Defendant was permitted to testify that he told his master that he did not agree to wait on the family for that money; that the master went in and told his brother, the defendant, and that defendant came down and said he calculated to pay for plaintiff’s services.

B. W. Downing, for app’lt; Wilrnot M. Smith, for resp’t

On the plaintiff’s examination in his own behalf he was allowed to testify to a conversation between himself and R. B. Roosevelt, Jr., in the absence of defendant.

The conversation was important if credited by the jury, and was properly objected and excepted to. Its reception was an error which requires a reversal of the judgment.

Irrespective of that error the judgment should not be allowed to stand. An examination of the plaintiff’s testimony shows his claim to be without merit. It abundantly appeared from his own testimony that his employment was general and that he was to give his whole time and services to his employer, Mr. Roosevelt, Sr., and his family.

It is entirely clear that his duties were rendered to all the members of the family indiscriminately. When closely pressed on

p. 370

cross-examination the triviality of the services for which he now seeks compensation was apparent.

There is no evidence that the original employer consented that his servant should enter the service of another. For any service to an outside party which plaintiff rendered for a consideration, .the master and not the servant would be entitled to recover.

The evidence of a promise to pay for the work specially for defendant was too vague to sustain a recovery; while an agreement to pay for services ordinarily gratuitous should be clear and unmistakable.

Upon the whole case it is plain that the plaintiff did not establish a cause of action, and a verdict for defendant should have been directed.

Judgment reversed.

Barnard, P. J., and Dykman, J., concur.