15 Daly 456 | New York Court of Common Pleas | 1890
The general term of the city court affirmed the judgment in plaintiff’s favor, rvithout feeling called upon to add anything to the very complete and satisfactory opinion delivered by the learned judge who tried the case without a jury. I have examined such opinion, and think that it considers, and correctly disposes of, every question, both of law and fact. The judge found as matter of fact, on sufficient evidence, that the report of the American Opera Company, signed by defendant, as a director, was false in material particulars. As shown in such opinion, the defendant was clearly an officer of the company, within the meaning of section 21 of the act of 1875, and therefore severally liable for debts owed by it at the time of the filing of such false report. The remedy against the corporation been exhausted by judgment and execution, and the indebtedness established de nova in the present The case, therefore, comes clearly within the statute. Counsel for appellant claims that defendant’s personal innocence of fraudulent intent—his ignorance as to the truth or falsity of the statements made in the
We think the learned judge correctly disposed of the defense set up under-rule 6 of the contract between plaintiff and the corporation. A portion of such rule is as follows: “In the event either of incomjfetency, or of such continued illness or decrease of physical or vocal faculties as to prevent one from doing service for a period of more than two weeks, the company may, in its discretion, cancel or annul the contract with the party in question, without being subjected to any claims for damages. The vocal and musical directors shall be the sole judges of the fact and extent of the incompetency, in applying this-rule.” “‘Incompetent’ is certainly not- a synonym for ‘unsatisfactory.’ If the contract had provided that, in case plaintiff proved ‘ unsatisfactory,’ he might be summarily dismissed, the company would have been justified in dispensing with his service at any time, for any cause, or no cause.” Glenny v. Lacy, 1 N. Y. Supp. 513. But, where the reason given for the discharge is “incompetency,” there must be something more than arbitrary caprice to-authorize the act. One man may be more competent for a task than another,, yet both may be competent. One vocalist may sing the baritone part of an opera better than another, yet neither be “incompetent.” Webster illustrates the use of the word “incompetent” by the phrases “incompetency of a c-hildfor hard labor;” “incompetency of a lunatic for intellectual labor.” In the sense-suggested by such illustrations, the plaintiff was not “incompetent” at all. Ahmatic is not at all able to perform intellectual labor. Plaintiff had sung his parts acceptably, and received his salary, without demur, for a period of seven weeks. This is undisputed, and, under such state of affairs, it was clearly right to hold that some allegation and proof of facts tending to show actual “incompetency” was required, in order to sustain the action of the. board. Although the vocal and musical directors are by the rule made the sole judges of the fact and extent of the “incompetency,”- the court will nevertheless assert the right of reviewing their action, in the interests of justice, where no facts appear which tend to render the charge of “incompetency” plausible. They could not make plaintiff “incompetent” by agreeing to pronounce him so. All the circumstances point to an attempt, through an ambiguous clause in the instrument, to get rid of the employe, who was faith, fully performing his contract, because it had become inconvenient to continue the payment of his wages. The above additional remarks are to be taken in. connnection with the opinion of the trial judge, in the reasoning of which I concur; The judgment appealed from should be affirmed, with costs. All concur.
