Rosenfeld v. New — 32 N.Y. St. Rep. 301

Majority

p. 301

Louis Rosenfeld, Resp’t, v. Jacob New, App’lt.

(New York Common Pleas, General Term

Filed June 2, 1890.)

Headnote

1. Master and servant — Compensation.

In an action for moneys deducted by defendant from plaintiff’s salary on the ground of overcharges in traveling expenses, the defendant claimed that plaintiff agreed that his traveling expenses should not exceed fifty dollars per week. Plaintiff denied this, but admitted that before starting on his first trip he said he could not travel on any such money, but would try to, and on subsequuent trips he submitted to deductions because of having charged sixty dollars per week, but claimed that he did not acquiesce in defendant’s authority to make such deduction, and testified that he actually expended sixty dollars per week. He was allowed that sum on the first trip. Held, that the question as to the fifty dollar agreement was properly sent to the jury.

3. Same — Accord and satisfaction.

The fact that plaintiff, on leaving defendant’s employ, received the amount which appeared due him by defendant’s books does not show an accord and satisfaction, as he refused to sign a receipt in full, although requested to do so, and gave no receipt at all.

Appeal from order of the general term of the city court of New York, affirming judgment in favor of plaintiff, and from judgment entered thereon.

The defendant employed the plaintiff in March, 1888, at a salary of $1,000 a year to travel as salesman. He did travel on the road as such, selling the goods of the defendant, using sixty dollars per week as traveling expenses; such salary was paid and ■expenses allowed until July 1, 1888, when plaintiff’s salary was 'increased $500 per year and a contract entered into for one year for $1,500, and nothing was said about expenses. For the first

p. 302

two trips subsequent to July 1, 1889, the. plaintiff used sixty dollars per week for traveling expenses, and it was allowed and paid to him with his salary. The last two trips of said yearly contract the plaintiff traveled on the road and used, as he had done before, sixty dollars per week for traveling expenses. When he came-home from the first of said last two trips the defendant informed plaintiff that he was going to charge him with $100 as overdrawn money, inasmuch as he had used sixty dollars per week, and defendant claimed he should have only used fifty dollars per week. Plaintiff objected to such deductions, but accepted the situation because, as he testifies, he was afraid of being discharged. Upon-his return from the last trip of said two he was again informed that his account was charged with $150 as an overdraft for the= same reason, and that amount would be deducted from his salary.. Plaintiff objected to such deduction and claimed that the money was used in the business of the defendant selling his goods, and had always been allowed him, and that he should not be charged with it. However, he accepted the sum of $271.90, which defendant admits being due him in any event from defendant, and refused to sign a receipt in full and brings this action to recover such sum of $250, deducted from his salary.

JEdward Browne, for app’lt; Joseph 0. Rosenbaum, for resp’t

I am of opinion that there was evidence to go to the jury on all the disputed points, and that the submission of the whole issue to them was fair and free from error. The-court could not have charged, as matter of law, that plaintiff entered into an actual agreement that his traveling expenses-should not • exceed fifty dollars per week. He admits that be said before starting on his first business trip that he could not travel on any such money, but that he would try to. Upon this-trip he charged his traveling expenses at sixty dollars per week, and they were allowed by defendant at that rate without objection. Plaintiff admits that upon subsequent trips he submitted to a deduction from his salary of $100 in instalments because of' his having charged sixty dollars instead of fifty dollars per week. But this, he claims, was without any final acquiescence in defendant’s authority to make such deduction, and, therefore, without releasing any existing legal rights, and he denies that he ever made-any contract fixing his expenses at fifty dollars. He testifies that-he actually expended sixty dollars per week for traveling expenses-during the period he was employed. The question whether or not such alleged fifty dollar agreement existed was properly sent to the jury.

There is also evidence to support the verdict in plaintiff’s favor on the question of the alleged accord and satisfaction. Although he consented to receive, at the time of leaving defendant’s employ, the amount which appeared due by the defendant’s books, he refused to sign a receipt in full for the same, although requested to do so, and in fact gave no receipt at all. Certainly the court would not have been justified in directing a verdict for defendant on this'point, and I think- the trial judge correctly charged that

p. 303

the burden of proof to establish the alleged accord and satisfaction was on the defendant.

The judgment appealed from should be affirmed, with costs. Booicstayer, J., concurs.