Schmerenbeck v. Funke — 45 N.Y. St. Rep. 30

Majority

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Peter Schmerenbeck, Resp’t, v. Hugo Funke, App'lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

1. Contract—Statute of frauds.

Plaintiff _ was employed by defendant to work as a ribbon weaver. Being afraid of being discharged at the close of a strike which was then in progress, he inquired if defendant would keep him at least a year, to which defendant assented. The work commenced on that day. Held, that the contract was for a year, and was not void under the statute of frauds.

S. Master and servant—Wrongful discharge—Damages.

In an action for wrongful discharge, it appeared that plaintiff was paid by the piece; he had worked for five days, and amount of his earnings shown, and proof was given as to the amount a weaver could earn, and no lack of work was shown. Held, that a basis for damages was proven.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

Action for breach of contract of employment as a silk weaver.

Lamed & Warren {J. J. Gleason and W. P. Knapp, of counsel), for app’lt; John J. Trapp, for resp’t.

The plaintiff seeks to recover damages for a breach of an entire contract, by which the plaintiff was engaged to work for a year' from the 5th of June, 1888, as a silk ribbon weaver. The compensation for the plaintiff’s labor was to be paid for by the piece.

The plaintiff left the employment after working for five days. The contract itself and the discharge of the plaintiff by the' defendant are put in issue by the pleadings and proof. The contract for a year is proven by the then superintendent, Adolph Oberstelehn, and by the plaintiff. Any entire contract is denied by the defendant. ■ The discharge is proven by the plaintiff after four and one-half days’ work by Mr. Grerberg, defendant’s second superintendent. Grerberg denies the discharge. Upon this evidence the verdict of the jury in favor of the plaintiff’s claim must be accepted by an appellate court. The jury was the tribunal to settle the dispute as to the fact. The • receipt, if proven, is not decisive of anything but the payment of . the four and one-half days’ work, ana that the plaintiff admits. The contract was for a year only. The declaration that it might continue longer was no part of it. “ I says, then you would keep me at least a year ; so he said, yes.” The work commenced on the day the contract was made, so that it was not a contract for a year to commence in the future. The basis for damages was proven. The plaintiff earned $22.70 for the four days and a half during which he worked for the defendant. Proof was given tending to show that a weaver of silk similar to the plaintiff could earn upwards of twenty dollars a week and as high as five dollars per day. The jury found an amount of damages not much less than the lowest of their, rates of compensation. The evidence did not show any lack of work to do.

The question put to the witness calling for an estimate of the yearly value of the plaintiff’s work at the rate he was being

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paid by plaintiff, was proper. The rate for weaving was known and the plaintiff’s rate was known. The estimate was less than he did earn, as shown by the admitted testimony of both parties.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.