Junge v. Haug — 32 N.Y. St. Rep. 189

Majority

p. 189

Walter Junge, Resp’t, v. John Haug, App’lt.

(Supreme Court, General Term, First Department

Filed May 23, 1890.)

Headnote

Services — Charge.

In an action for wrongful discharge from employment, a charge that the fair inference from the testimony was that in plaintiff’s opinion the Lettering of his condition was not so much an increase of salary, hut was to he a contract of employment for one year, is not erroneous as being an instruction that, as matter of law, this inference must he drawn, where the court immediately thereafter rehearses the evidence as to the employment and leaves the question to the jury and explains that that portion of the charge was only intended to state that it was so claimed.

Appeal from judgment entered upon a verdict rendered at the trial of the action at a circuit court and from order denying motion for new trial.

George C. Oomstoclc, for app’lt; John Franlcenheimer, for resp’t.

This action was brought to recover damages for an alleged breach of a contract of employment. The plaintiff claimed that he was hired for one year, and that he was iischarged without sufficient cause.

The defendant claimed that he had employed the plaintiff by ;he week, and, therefore, had the right to discharge him at the end af any week, and also that, even if he had hired him by the

p. 190

year, he had discharged him for a good and sufficient cause. The parties gave evidence tending to establish their various claims, anc the jury, under the charge of the learned judge who presided at the trial, found a verdict for the plaintiff.

The appellant claims that this result was. occasioned by a portion of the judge’s charge, which was duly excepted to, which exception presents the sole ground of appeal.

For the purpose of showing the injury occasioned to the defendant by the alleged erroneous charge, the appellant claims that there was a preponderance of evidence in favor of the defendant. This point we do not think it necessary to examine, because upon examination of the proceedings upon the trial, as the case was finally submitted to the jury, we find no error, except perhaps the plaintiff was held in some respects to a too stringent rule in respect to his proof.

The learned judge charged that “the fair, inference from the testimony in the case is that the bettering of his (respondent’s) condition, in his (respondent’s) opinion, was not so much the increase ■of two dollars a week in the salary, but was to be a contract for ■employment for one year.” It is claimed by the appellant that this was an instruction to the jury that as matter of law this inference must be drawn.

That this was not so intended by the judge is evidenced by •that part of the charge immediately succeeding, where the court rehearses the evidence upon the subject of employment and leaves the question for the jury to decide upon the evidence, and when his attention is called to this language at the close of the charge by the appellant’s counsel, it is distinctly stated that all that was intended to be stated was that it was so claimed. This remedied any difficulty if there was any, and the jury could not have possibly had any other idea than that the question was one for them to decide upon the evidence.

We do not think, therefore, that any error appears upon this record calling for a reversal of the judgment.

Judgment and order appealed from affirmed, with costs.

Barrett and Bartlett, JJ., concur.