245 A.D. 298 | N.Y. App. Div. | 1935
The appellant entered into an agreement with the respondent whereby the latter was employed as a research engineer for a term of three years beginning May 1, 1930, at the rate of $4,160 per year, payable $80 weekly. This action was brought to i eco ver $7,400 damage for the alleged wrongful discharge of the respondent on or about July 2, 1931.
On the trial the respondent was permitted, over the objection of the appellant, to offer testimony as to a motive for his discharge.
The effect of the admission of this testimony as we view it was to cloud the real issue and prejudice the appellant’s defense.
As there is to be a new trial, we may also say that the refusal of the trial court to charge as requested with reference to condonation was improper. The proper view is that expressed in Macauley v. Press Publishing Co. (170 App. Div. 640) as follows: “ It is of no importance that the master put up for a long time with the servant’s dereliction of duty. As was said in Gray v. Shepard (147 N. Y. 183): 1 The claim that the defendant, by retaining the plaintiff in his employment after knowledge of violations of duty, thereby condoned these offenses, and that they could not thereafter be used as grounds for discharge, is without force in view of the fact that his violations were committed from time to time, continuing until the discharge. The master may overlook breaches of duty in the servant, hoping for reformation; but, if he is disappointed and the servant continues his course of unfaithfulness, he may act, in view of his whole course of conduct, in determining whether the contract of employment should be terminated.’ ”
The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Martin, P. J., O’Malley, Townley and Glennon, JJ., concur.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. Settle order on notice.