207 A.D. 752 | N.Y. App. Div. | 1924
The plaintiff in this action alleges that defendant employed him as an embroidery machine operator for a period commencing on August 20, 1920, and ending on August 20, 1921, at a salary of ninety-five dollars per week; and that defendant wrongfully discharged plaintiff on November 1, 1920.
The answer admits the employment and the dischargé, but asserts that there was no hiring for a definite period, and sets forth that if there was any such agreement it was void under the
The plaintiff filed a bill of particulars, in which he alleged that the agreement was made on the evening of August 19, 1920, at defendant’s place of business; that it was oral; and that the substance of the agreement was that the defendant agreed to employ the plaintiff as a machine operator and embroiderer for a period commencing August 20, 1920, and ending on August 20, 1921.
Respondent also in his bill of particulars computes his damage to be at the rate of ninety-five dollars per week for a period of forty-two weeks from November 1, 1920. Forty-two weeks from November 1, 1920, expires on August 22, 1921.
Upon cross-examination, after plaintiff had detailed all the conversation had on August 19, 1920, when he alleges he was hired for a year, his services to commence on the following day, he was asked whether he was to work on August 20,1920, and he answered, “ Yes; ” and in answer to the succeeding question, he testified he was to work every working day after that. He was then asked if he was to work on August 20, 1921, and he answered, “ No.” In answer to the question whether anything was said about the 20th day of August, 1920, he answered, “ No.”
Plaintiff upon further cross-examination by defendant’s counsel said, in respect to the variance of his testimony from the statement in the bill of particulars, that he did tell his attorney that that was the period of the employment; but he repeated that nothing whatsoever was said between defendant and him as to the day or dates to which the employment was to continue or on which it- would end. He then testified that his statement for the period in which his contract was to run was upon his own calculation and not based upon any statement of defendant.
Thus a question of fact whether the Statute of Frauds did apply to the hiring or not was squarely presented, and the defendant’s counsel asked the court to charge these requests, as follows: “ I respectfully ask your Honor to charge that the plaintiff is bound by his bill of particulars. The Court: Yes, I charge that. [Defendant’s Counsel]: I ask your Honor to charge that if the jury believes the plaintiff’s version of this case as set forth in the
This refusal to charge was doubtless effective in rendering defendant’s proof that the contract was within the Statute of Frauds of no avail to him, and was a substantial error of law for which we must reverse the judgment. It permitted the jury to find that, notwithstanding the complaint, the bill of particulars and the plaintiff’s testimony as to the date of hiring and the termination of the employment, the plaintiff might recover, although if the version of the employment was as asserted by him in the bill of particulars, the contract would not be enforcible.
The judgment and order should, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Dowling, Finch and Martin, JJ., concur.
Judgment and order reversed arid new trial ordered, with costs to appellant to abide the event.
