25 N.Y. St. Rep. 862 | City of New York Municipal Court | 1889
We hold that an employé, to retain his employment, must be sober, attentive, obedient, and polite, and that one act of inebriety, want of attention, willful disobedience, or rudeness, while engaged in the performance of his duties, may justify his discharge. Applying these principles to this ease, we hold that the conduct of the plaintiff on December 31, I§87, in taking quinine mixed with whisky, and repeating the dose at intervals, was. misconduct, and this whether the plaintiff had the malaria or not. If the plaintiff was ill, and required a compound calculated to intoxicate a person, and incapacitate him from properly attending business, he should have remained at home, or repaired to some place where his condition would not have been observed. This misconduct was sufficient to justify the plaintiff’s discharge, if the defendants elected to adopt that course. But they did not exercise this option. They continued the plaintiff in their employ until January 5,1888, when they discharged him for another reason. The letter of discharge is in these words: “Hew York, January 5th, 1888. We regret to notify you that, on your refusal to do as instructed, we this day cancel your engagement. H. F. Simons & Co.” The contract of hiring was in writing, dated April 1,1887, and was at the rate of $1,600 “ for the year, ” payable weekly or monthlj' as due, so that by interpretation the hiring was for the year. The question, therefore, is whether the plaintiff was rightfully or wrongfully discharged. The offense of December 31,1887, was waived by the defendants by continuing the plaintiff in their employ up to and including January 5, 1888, and by then discharging him for another reason. By voluntarily accepting services after the breach, it was condoned by the defendants. Wood, Mast. & Serv. § 121.
This brings us down to the cause of the discharge, i. e., disobedience of orders. The defendants had a lot of geese, amounting to about four or five dollars’ worth, which they told the plaintiff to sell for eight or nine cents a pound, and he received one cent per pound less. They were inferior, unmerchantable geese, and the difference between the sum at which the plaintiff sold them and the sum at which he was requested to sell them aggregated on the lot from 50 to 60 cents. The defendants had frequently told the plaintiff to use his best judgment in making sales; indeed, “use your own judgment,” was a common phrase with thedetendants. Taking the direction as an advice from his employers, and using his own best judgment in connection with it,.