Dows v. Morrison

On the argument of this appeal we intimated oar opinion that plaintiff’s employment by defendant’s cashier, Osborn, at the salary of ninety dollars per month, was within the latter’s apparent authority and to this, upon attentive examination of the evidence, we adhere.

We also at the time expressed our view that it was error for the trial justice at the trial, and in fact after the trial was begun, to allow an amendment of the complaint by adding thereto a new and inconsistent cause of action, to wit: damages for breach of the contract of employment, and that defendant’s exception to the allowance was well taken; but at the solicitation of respondent’s counsel the question was reserved for further consideration.

Section 2944 of the Code of Civil Procedure, which is the only alleged authoi-ity for the amendment to which we have been referred by counsel, proves to be exclusively applicable to justice’s courts. But assuming it to apply as well to the district courts in the city of New York, neither of the cases to which our attention has been directed sanctions the construction requisite to support the amendment. Nor have we been able to ascertain as the result of our own researches that the section, which is but a reenactment of former provisions affecting justice’s courts, has ever received that construction. Chap. 844, Laws of 1857.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant, unless respondent within five days consents m writing that the judgment be reduced to sixty dollars, the amount of salary due at the time of his discharge, with interest and the costs of the court below, and upon such consent the judgment so reduced is affirmed, without costs.

Pryor, J., concurs.'