Gibney v. National Jewelers' Board of Trade

144 N.Y.S. 321 | N.Y. App. Term. | 1913

GUY, J.

This action was brought for the breach of an alleged contract to hire the plaintiff as a correspondent in defendant’s bankruptcy department from month to month at a salary of $90 a month. The plaintiff claimed to have been hired about October 15, 1912, and he was discharged on April 4, 1913. The answer denied the material allegations of the complaint.

[1] Accepting plaintiff’s view of the causes of his illness, the weight of evidence is that he was an unsatisfactory employé, because of his unexplained absence following pay day, whom defendant was justified in discharging. Jerome v. Queen City Cycle Co., 163 N. Y. 351, 356, 357, 57 N. E. 485; McGarrigle v. McCosker, 83 App. Div. 184, 188, 82 N. Y. Supp. 494, affirmed 178 N. Y. 637, 71 N. E. 1133.

[2] It- is established by a strong preponderance of evidence that plaintiff’s employment was a hiring at will; his salary being calculated on a semimonthly basis. He had a right to leave and the defendant had a right to discharge him at any time. Watson v. Gugino, 204 N. Y. 535, 541, 98 N. E. 18, 39 L. R A. (N. S.) 1090, Ann. Cas. 1913D, 215; Aldrich v. N. Y. Life Ins. Co., 121 App. Div. 18, 105 N. Y. Supp. 493; Martin v. Insurance Co., 148 N. Y. 117, 121, 42 N. E. 416; Wightman v. N. Y. Life Ins. Co., 119 App. Div. 496, 498, 499, 104 N. Y. Supp. 214.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event All concur.