Leacock v. Striker — 32 N.Y. St. Rep. 690

Majority

p. 690

Thomas Leacock, App’lt, v. Elsworth L. Striker, Resp’t.

(New York Common Pleas, General Term

Filed July 18, 1890.)

Headnote

Services. — Quantum meruit.

Where an employee hired by the month, upon being discharged for negligence, refuses a tender of half a month’s wages for a less number of days that he has worked, he cannot recover upon a quantum meruit for the time he worked.

Appeal from a judgment rendered in the district court of the. city of New York, for the eleventh judicial district, in favor of. the defendant, dismissing plaintiff’s complaint.

Reynolds & Harrison, for appl’t; Bliss & Schley, for resp’t.

The plaintiff, who-was employed as an engineer, having been discharged, brought this action to recover as-damages his wages for a month. The defense was a justification of the discharge on the ground of plaintiff’s negligence and carelessness as engineer, and a counterclaim for damages arising from such negligence and carelessness. After hearing the testimony offered, the justice dismissed plaintiff’s complaint, and did not allow any part of defendant’s counterclaim. Hence plaintiff’s appeal.

We have carefully examined the return, and the only question raised by it seems to be one of fact, and we think the evidence of negligence, although conflicting, quite sufficient to sustain the-justice’s finding in that respect.

But appellant contends that even if this were so, inasmuch as he had worked for nine days during the month in which he was discharged, he should have had a judgment for such services on a quantum meruit. But the return shows that, when discharged, he was tendered a half month’s wages for those days, which he. refused.

•The judgment should, therefore, be affirmed, with costs.

Allen and Bookstaveb, JJ., concur.