28 N.Y.S. 715 | New York Court of Common Pleas | 1894
The judgment of affirmance of the court below is conclusive upon us as to the weight of the evidence. Rowe v. Comley, 11 Daly, 318; Smith v. Pryor (Com. Pl. N. Y.) 9 N. Y. Supp.
The first exception was taken to the admission of plaintiff’s testimony concerning the contents of a letter received by her from the defendant. This letter had a material bearing upon the issues-litigated, because it tended to corroborate plaintiff’s claim that her engagement was for the “season.” Plaintiff testified that she was-unable to produce the letter, because she had destroyed it; and defendant objected to the admission of parol evidence of its contents, on the ground that the evidence was incompetent, because it conceded that the destruction of the letter was the result of plaintiff’s voluntary and deliberate act. A due consideration, however, of all the circumstances which appeared from plaintiff’s testimony to have-attended the destruction of the letter disclosed that, though the destruction was voluntary and intentional, it was, notwithstanding,, within the province of the trial justice to admit the testimony objected to. Every one is chargeable with knowledge that the law requires of him the production of the best evidence, which, in the-case of a writing, is the instrument itself. If he, therefore, deliberately destroys the written instrument, and attempts to supply it by parol evidence, which is of inferior degree, it is, in the absence of' proof that the written instrument was destroyed by accident, surprise, or mistake, a conclusive presumption that it was in furtherance of a corrupt design thus to secure some unfair advantage over-his adversary. Under such circumstances, parol evidence of the contents of a written instrument cannot be received. It is, however,, at all times, proper to inquire into the motives which prompted the destruction of the written instrument; and if, from the evidence adduced, the motives appear to have been innocent of corrupt design, and the party seeking to avail himself of parol evidence of the-contents of a written instrument destroyed by him did not at the-time of such destruction appreciate the importance of the instrument, or was under some erroneous impression concerning its effect,, under circumstances which' dispel suspicions of corrupt intent or de
The trial justice properly excluded the following question by defendant’s counsel on plaintiff’s cross-examination: “But, as I understand, you were acting out this two weeks’ notice, which it is the custom to give in such cases, were you not?” No evidence had been adduced at the time that there was any custom in the theatrical profession, pursuant to which contracts entered into between artists ■and managers were terminable by either upon two weeks’ notice to the other. Neither had defendant pleaded any rescission of the contract as a defense to the action. On the contrary the answer explicitly admitted that plaintiff was discharged,—an admission which was plainly inconsistent with a rescission of the contract in furtherance of its provisions. The issues tendered by the pleadings, inclusive of the amendment of the answer which was allowed ■on the trial, limited the inquiries to the terms of the contract of employment and whether or not plaintiff was rightfully discharged. Assuming, therefore, that pursuant to the provisions of the contract, or by custom, defendant had the right to rescind or terminate the contract, upon notice to plaintiff, it was notwithstanding incompetent to him, in the absence of the exercise of that right pleaded as a defense, to avail himself thereof, either to defeat plaintiff’s recovery altogether, or to affect the measure of her recovery. This precise question was lately determined by this court in Watson v. Bus-sell (opinion filed April 2, 1894) 28 N. Y. Supp. 26; and it is unnecessary, therefore, to further discuss it here. Upon the grounds
Accompanying this appeal, there was a further appeal from an order of the general term of the court below which affirmed an order of the trial justice denying appellant’s motion for disallowance of respondent’s amendment on the settlement of the case on appeal from the judgment. The case, as settled and certified to us, con
It appeared in evidence that subsequent to her discharge, in November, 1892, plaintiff visited her sister, at Savannah, Ga., and there remained until April, 1893. Her contract of employment with defendant was entered into in the city of New York. Upon these facts, defendant’s counsel requested the court to charge the jury, as propositions of law, that defendant had a right to recall plaintiff’s discharge; to insist upon a reinstatement of the contract of employment; that plaintiff was bound to remain in the city of New York, to await the recall of her discharge; and that she was not entitled to recover for the period of her absence from the city of New York. It is apparent that these several propositions were predicated of Polk v. Daly, 4 Daly, 411, and like cases, in all of which the plaintiff was held entitled to recover wages upon the theory of constructive service, consistent with which it was incumbent upon the servant to show his readiness to comply with his master’s orders respecting the employment; a theory, however, which the case of Howard v. Daly, 61 N. Y. 362, has authoritatively settled not to be the law of this state. But, though we assume the views of appellant’s counsel respecting the law to be correct, the propositions included in the requests refused are irrelevant to the facts of the case at bar, for the defendant has, by his answer, admitted that he discharged the plaintiff from his employ, and that since the discharge he has refused to allow her to continue in his. employ. If it be contended that the several requests were intended only to affect the measure of plaintiff’s recovery, the propositions which they imply were equally fallacious. Plaintiff’s damages were, prima facie, the amount remaining unearned under the contract of employment at the time of the discharge. Howard v. Daly, supra.