Arkush v. Hanan — 39 N.Y. St. Rep. 424

Majority

p. 424

Samuel I. Arkush, Resp’t, v. James Hanan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

1. Master and servant—Discharge of employe—Evidence of justification.

In an action by an employe for an alleged wrongful discharge, the defendant, in justifying the discharge, is not confined to the cause originally assigned, but may show that the discharge was justified by any sufficient cause.

2. Appeal—Review—Settlement of case.

With the disallowance of proposed amendments to a case by the court below, the controversy with regard to their subject matter is ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the event of an appeal from the judgment.

Appeal by the defendants from a judgment in favor of the plaintiff rendered upon a verdict at circuit, and from an order denying a motion for a new trial; also from an order directing that certain amendments which were disallowed (together with an explanatory memorandum) and certain affidavits used in connection therewith be filed, added to the case and printed with it.

Samuel Greenbaum, for resp’t; William J. Gaynor, for app’lts.

—The order last referred to in the above statement should be reversed and the entire supplement to the case, directed by this order to be printed, should be expunged from the record. With the disallowance of the proposed amendments the controversy with regard to their subject matter was ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the merits of an appeal from the judgment. As to the affidavits of the attorneys, they simply encumber the record. We. must take the case as settled, and that only, and dispose of the appeal upon the record as thus made up. We now come to the merits of the main appeals.

The defendants are manufacturers of boots and shoes. Prior to the 14th day of December, 1887, they decided to open a retail store, and on that day they entered into an agreement with the plaintiff whereby he was to act as superintendent of this retail store until the 1st day of February, 1891. In the latter part of December, 1888, the defendant discharged the plaintiff, and this action is because of that act. In their answer the defendants justified their discharge of the plaintiff upon three grounds.

First That he treated their customers in a rude and offensive

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manner, and spoke to them arbitrarily and disrespectfully, thereby injuring the business of the defendants.

Second. That he treated one Acton, a customer of the defendants, with especial rudeness, going so far in a dispute which he had with this person as to call him a cur and to tell him to get out of the store.

Third. In refusing to give the defendants any explanation of his conduct in thus ill-treating Acton.

The case seems to have been tried upon the theory that because the defendants, in dealing with the plaintiff, specified this latter offense as the ground of discharge, they could not afterwards justify their act by showing other misconduct This is not the rule which governs in actions of this character. In justifying the discharge, the defendants were not confined to the cause originally assigned. They could show that the discharge was justified by any sufficient cause. Harrington v. First National Bank of Chittenango, 1 Thompson & Cook, 361, citing Cussons v. Skinner, 11 Mees. & Wels., 161; Ridgway v. Hungerford Market Company, 3 Ad. & Ellis, 171; Baillie v. Kell, 4 Bing. N. C., 651; Green v. Edgar, 21 Hun, 414 ; Wood’s Master & Servant (2d ed.), § 121. As was said by Littledale, J., in Ridgway v. Hungerford Market Company, supra: “If a justifying cause exists, the master may assign it whenever the action is brought.’’

The case here turned entirely upon the right to discharge the plaintiff because of his refusal to explain why he had ill-treated Acton. The defendants, however, offered to prove the misconduct specified in the “ first ” and “ second ” grounds above enumerated, but their testimony on these points was ruled out and an exception duly taken. We think this was error. Without passing, therefore, upon the other questions presented, as to some of which we have serious doubts, the judgment and order denying a motion for a new trial should, for the error pointed out, be reversed and a new trial granted, with costs to the appellants to abide the event. The order directing certain papers to be added to the .case and printed should be reversed, with ten dollars costs and the disbursements of printing the same.

Van Brunt, P. J., and Patterson, J., concur.