Diringer v. Moynihan — 32 N.Y. St. Rep. 693

Majority

p. 693

Jacob Diringer, Resp’t, v. Daniel Moynihan, Appl’t.

(New York Common Pleas, General Term

Filed July 18, 1890.)

Headnote

1. Master and servant — Employment.

Employment by a sub-contractor of a laborer to work on defendant’s building does not make such laborer a servant of defendant, and the fact that the latter paid the laborer money as a matter of charity cannot bind him to pay wages for which he never contracted.

2. Promisb — Statute of frauds.

A promise by the owner of the building to see that the contractor or sub-contractor would pay the workmen is a mere promise to pay the debt of another and not being in writing is void.

Appeal from judgment of the fourth district court.

Action for wages.

S. Mullen, for resp’t; J. M. Tierney, for app’lt.

We have carefully examined the evidence offered on the trial, and are convinced that for some reason not clearly apparent the jury were misled in rendering any judgment in plaintiff’s favor, for there is no proof that he was ever employed by the defendant.

The utmost that can be claimed on the evidence is that plaintiff was originally employed by a Mr. Smith, whom the defendant had engaged to look after the work and see. that it was done according to contract, or by one Spauman, who had contracted with Minto, the principal contractor, to do the mason work on a building then being erected by the defendant, or by Minto himself.

It is uncontradicted, that Smith had no right or authority to employ any one. His duty was simply to see that the work was done according to the contract between Minto and the defendant.

It is also clear that neither Minto nor Smith originally employed the plaintiff; this was done by Spauman alone; the latter told plaintiff that Minto was the contractor; that he was working for the owner, the defendant, by day work. Mo price was at any time agreed upon by any one ; that plaintiff simply went to work under Spauman’s representations and made no contract with any one else.

He expressly testifies that he “ never had any conversation with Minto; he never employed meconsequently the only employment could have been by Spauman. But he was a sub-contractor of Minto, and the latter had been fully paid by the defendant

p. 694

when he abandoned the work. Besides, no lien had been filed against the building by the plaintiff.

The fact that defendant gave plaintiff two dollars as a matter of charity cannot bind him to pay wages for which he had never contracted. As a matter of fact, Spauman ceased work when Minto abandoned the contract.

If defendant at any time promised that he would see that Minto or Spauman would pay his workmen, it was without consideration, and a mere promise to pay the debt of another, and not being in writing, was void.

We, therefore, think the judgment should be reversed, with costs to appellant, under Curley v. Tomlinson, 5 Daly, 283 .

Allen and Bookstaver, JJ., concur.