Gilligan v. Gerry — 32 N.Y. St. Rep. 674

Majority

p. 674

John Gilligan, Resp’t, v. Allston Gerry et al., App’lts.

(New York Common Pleas, General Term

Filed June 16, 1890.)

Headnote

New trial.

The evidence tending to show that plaintiff was paid by defendants’ paymaster, and plaintiff’s evidence as to who were defendants’ agents at the time having been improperly admitted, a new trial is granted.

Appeal from a judgment rendered in the district court in the city of New York for the tenth judicial district.

L. L. Kettogg, for app’lt.

After a careful perusal of the evidence in this case, we are satisfied that justice will be promoted by ordering a new trial. From that evidence it appears that in December, 1889, and for some time prior thereto, Louis Cattabery was engaged as sub-contractor in doing work on the line of the New York, New Haven & Hartford Railroad in the vicinity of One Hundred and Seventieth street While he continued this work he hired all the laborers, and no one else was responsible for their payment. On the 28th of December, 1889, the work was taken away from him by the defendants. Up to that time in December the plaintiff was employed by Cattabery, and not by the defendants. McCahill was at that time paymaster for Cattabery, and not for the defendants. For the work done after that time, we think it is very clear that the plaintiff was paid by McCahill as paymaster for the defendants, partly in money, and partly in a board bill, which was paid by plaintiff’s direction, who was present when the order was

p. 675

given. We also think the testimony of the plaintiff as to who were defendants’ agents in December was improperly admitted; that- the testimony does not establish such agency. It seems to ns very clear that Toner was not acting for the defendants in December.

For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Larremore, CL J., Bookstaver and Bischoff, JJ., concur.