Linton v. Unexcelled Fire Works Co. — 32 N.Y. St. Rep. 1108

Majority

p. 1108

Charles B. Linton, Resp’t, v. The Unexcelled Fire Works Co., App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.

Headnote

1. Master and servant — Discharge—Evidence.

In an action for wrongful discharge, where one of the reasons alleged for such discharge was that plaintiff had given some fireworks to the foreman of a fire company, the admission of proof of a custom to do so is not error, where evidence as to a gift to an adjoining foreman has been received without objection, and it appears that such gift was with the assent of the manager of the works.

2. Same.

Where the evidence of the plaintiff and the manager is at variance, it is proper to show that the latter had never objected to plaintiff's fidelity.

Appeal from judgment in favor of plaintiff, entered upon a verdict

Action for a wrongful discharge from employment.

Hatch & Warren, for app'lt; Wm. J. Gaynor, for resp’t.

The defendant agreed in writing to hire the plaintiff as superintendent of its factories from July 13, 1887, to the 1st day of January, 1890, at the yearly compensation of $4,000 a year. On the 6th day of February, 1889, the defendant discharged the plaintiff and this action was brought to recover for a breach of this contract. The defendant in its answer gave many reasons for the discharge. The plaintiff was unfaithful. He appropriated to his own use the defendant’s .property. He gave away the defendant’s manufactured articles. He used the defendant’s employees to do work for himself. He disobeyed ■orders. He engaged in other business. These questions of fact were sharply contested on the trial and the finding of the jury cannot be set aside if no error was committed upon the trial. It was proven on the trial that the plaintiff gave some fire-works to

p. 1109

the foreman of a fire-engine company. This proof of a custom to do so was objected to and its admission is urged as error. Similar proof as to an adjoining foreman had been received without objection and this evidence as to the gift to the foreman- was under the direction or at least with the assent of the manager of the works. It was not a question of any importance whether one Grillitard removed property to fix his piazza and the evidence was properly rejected. It was proper to prove by the plaintiff that the manager had never objected to the plaintiff’s fidelity. Proof was given that certain of plaintiff’s acts were wrong. The plaintiff and the manager were at variance in their testimony.

It was, under these circumstances, proper to show that no communication was ever made to plaintiff as bearing upon the existence of the facts out of which the charge of infidelity to the engagement upon plaintiff’s part is based. While the rule is strictly adhered to, that the verdict of a jury is final as to disputed questions of fact, there is no reason in the case to show that the finding is not right The discharge was sudden .and was made without any substantial reason, so far as the defendant then knew. The conflict has been made upon alleged discoveries since the discharge. Many of these are trifling. A gift to a foreman of a fire-company for the benefit of the company of a few fire works. A taking of property without value. An effort to show that the plaintiff’s son’s business was his own. An employee is permitted to stay the day out on which she was discharged. These are the principal questions given to the jury. The formula belonged to the plaintiff if it was a secret of his own, otherwise it was public to all and the plaintiff should have given it up. The question went to the jury on this theory without objection, and there is no reason to question the finding. Some were denied. Some were done with defendant’s assent; some fell from their unimportance, where there was no intention to do wrong.

The judgment should therefore be affirmed, with 'costs.

Dyeman and Pratt, JJ., concur.