Penney v. Kaldenberg — 56 N.Y. Super. Ct. 178

Majority

p. 178

OLIVER V. PENNEY, Respondent v. FREDERICK J. KALDENBERG, Appellant.

Headnote

Master and Servant, their relations and obligations.

Where by the terms of the contract, the plaintiff was bound to account to defendant for his traveling expenses, the questions as to whether the plaintiff had refused to render an account at request, or had accounted to the satisfaction of defendant, or whether the defendant had waived the rendition of the account, were questions of fact, for the consideration of the jury, and in the case at bar, were properly submitted to the jury by the court.

Before Sedgwick, Ch. J., and Tritax, J.

Decided October 25, 1888.

Appeal by defendant from judgment entered on ver

p. 179

diet c>f a jury and from order denying motion for new trial,'made upon the minutes.

Henderson & Treadwell, attorneys, and L. B. Tread-well of counsel, for appellant.

David K. Case, attorney, and A. Boring Cushing of counsel, for respondent.

This was an action by plaintiff to recover from defendant, wages stipulated by defendant in a special contract to be paid to plaintiff for services.

The first position taken for defendant on the appeal, raises a question that was not presented on the trial.

The second position, that no discharge of plaintiff was shown, presented a question to be submitted to the jury.

The third position was, that the plaintiff being bound to account to defendant for his traveling expenses, defendant’s demand for the account, shows that he did not waive the rendition thereof. This is not to be sustained, for if the defendant made such a demand, it is consistent with the testimony in the case, that the demand was after the defendant had learned from plaintiff the amount and objects of the expenditures, and that plaintiff had communicated this in a manner that was, at the time, satisfactory to the defendant. The defendant’s testimony showed that plaintiff had given some account, for the former said to the latter that the expenses were sixty-two per cent, of the sales.

The plaintiff said he did not maké out and deliver to Mr. Kaldenberg,the defendant, upon the plaintiff’s return from his trip, a statement of the moneys paid for traveling expenses. This was not an admission that he had not informed the defendant in another,» competent, manner. There was no evidence that the defendant exacted that the plaintiff should make out and then deliver a statement.

p. 180

There was an exception, the validity of which, so far as its form was concerned, is doubtful, to the charge of the court, that if the jury should find for the plaintiff the amount of the verdict should be $729. The defendant’s counsel claimed that the charge was erroneous, for the reason that the plaintiff should have been charged with the amount of traveling expenses which was about $634. That however depended upon whether the jplaintiff had accounted to the defendant, as to the traveling expenses, and whether he had, was left to the jury and it was left in a proper manner.

Judgment and order appealed from affirmed with costs.

Truax, J., concurred.