18 N.Y.S. 168 | City of New York Municipal Court | 1892
This action was to recover damages for the breach of a contract of employment for the term of one year from June 10, 1889, on the ground of the unjustifiable discharge of plaintiff on the 2d of November following. The defenses were that plaintiff voluntarily left the employment, and an effort to prove plaintiff’s subsequent earnings in diminution of his damages, and as to both of which the jury found against defendant, except as to $5.50, which plaintiff admitted he had- earned for driving an express wagon for three days. On the trial plaintiff testified tjiat he had not been employed but for the three days, and upon cross-examination he adhered to this statement, and was cross-examined as to whether he had been engaged in the express business other than as a driver for these three days. And the defendant, his wife, his son Jacob, and his daughter Esther all testified that plaintiff was engaged in the express business after he left defendant’s employment. And so it clearly appears that the questions as to who had terminated the employment, and as to what amount plaintiff had thereafter earned from the express business or otherwise, were within the issues litigated on the trial, and determined adversely to defendant by the jury. The defendant, as all defeated parties are, was surprised at the verdict, and moved on affidavits for a new trial on the ground of surprise and newly-discovered evidence. Now, as to these affidavits. In one the affiant states that he was in partnership with plaintiff in the express business for several months, and that they made eight or ten dollars per week, although he admits that the license to conduct the business was taken out in his name. The defendant, in his answering affidavit, denies this copartnership, and presents his denial in minute detail, and with more weight than the alleged partner affirms to the contrary. In another, the inspector of the Second-Avenue Railroad Company deposes that his company paid the plaintiff $20 for damages caused to a wagon by one of his company’s cars, and, as to this, plaintiff deposes that the wagon was damaged while in his charge; that the owner, his employer, said that he would hold him (plaintiff) responsible; that he went to the company, collected the amount of the damages, and turned it over to his employer; and in another the affiant says that plaintiff told him that he was engaged in the express business, and also that he had worked in a sugar factory at $10 a week, all of which plaintiff in his answering affidavit denies, and deposes affirmatively that he never worked in a sugar factory or was engaged in the express
