Olena v. Huntington — 39 N.Y. St. Rep. 790

Majority

p. 790

Theophilus D. Olena, Resp’t, v. Austin Huntington, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 2, 1891.)

Headnote

Master and servant—Wrongful discharge.

In an action for wrongful discharge of an employe, the answer alleged misconduct and incompetency on plaintiff’s part in justification of such discharge. The evidence as to such misconduct was conflicting. Held, that the question was one for the jury, and that a verdict for plaintiff would not he interfered with.

Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion to set aside the verdict and for a new trial.

Hornblower, Byrne & Taylor, for app’lt; Donald F. Ayres, for resp’t.

—This is an appeal by the defendant from a judgment entered against him in favor of the plaintiff, upon a verdict rendered at the circuit, and from an order denying a motion for a new trial upon the minutes of the court

The action was brought to recover the damages sustained by the plaintiff for the breach of a contract between the parties by which the defendant employed the plaintiff as a salesman from the twenty-fifth day of January, 1890, until the twelfth day of July, 1891, at a salary of sixty dollars a week, with some contingent right to the profits of the business.

The plaintiff entered upon the performance of his duties under the contract and continued in the service of the defendant until the twenty-fifth day of May, 1890, when he was discharged.

The defendant undertook to justify the discharge of. the plaintiff under allegations of incompetency and misconduct, and at the trial considerable testimony was introduced by the defendant to substantiate the defense and by the plaintiff to show that it was unjustifiable, and the determination of the case depended upon the justice or injustice of the discharge.

That being a question of fact which was sharply contested, and upon which there was testimony on both sides, it was for the determination of the jury alone.

p. 791

Such was the view of the trial judge, and he submitted the case to the jury in a fair and careful charge and the plaintiff obtained the verdict.

We must assume, therefore, that the questions involved were decided in favor of the plaintiff and his testimony, and that assumption justifies the verdict

We find no error, and the judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.