205 A.D. 110 | N.Y. App. Div. | 1923
The action was to recover damages for an alleged wrongful discharge.
The plaintiff was employed by the firm of Kaltenbach & Stephens,
Resolving any contested fact in plaintiff’s favor, the judgment in his behalf cannot stand. The plaintiff was manager of the sales department of the defendant, and as such was given, as the same became due, the money to meet the payroll of that department. On January 15, 1918, he received the money for the payroll due that day. Among others he received the pay of a salesman at San Francisco, Cal., amounting to $161.78. It was admitted, not alone by failure to reply to the counterclaim but specifically upon the trial, that he had never paid this money over but had retained and converted it to his own use. His only justification was that as he had the money in bis possession when he was discharged he credited the amount on his claims for damages for wrongful discharge and for certain disbursements that he alleged he had made for the defendant’s account. Thus the plaintiff admits that he took property of the defendant under such circumstances as amounted to a larceny (Penal Law, § 1290, subd. 2) and for which his alleged justification was not an excuse. (Id. § 1306.) This act was a complete justification for the discharge. It is immaterial that some other cause may have been assigned as the reason, or the defendant did not know of the larceny at the time of the discharge. It is well settled that “ if a justifying cause exist, the master may assign it, whenever the action is brought.” (Ridgway v. Hungerford Market Co., 3 Ad. & El. 171; Getty v. Williams Silver Co., 162 App. Div. 513, 516; 221 N. Y. 34, 39.) The facts being admitted, the question of justification was for the court and the case should not have been submitted to the jury.
On the plaintiff’s appeal the order denying his motion to set aside the verdict on the ground of inadequacy of damages should be affirmed. On the defendant’s appeal the judgment and order should be reversed, with costs, and judgment directed for the defendant for the sum of $161.78, with interest from January 15, 1918, with costs.
Clarke, P. J., Smith, Merrell and Finch, JJ., concur.