128 N.Y.S. 492 | N.Y. App. Div. | 1911
This is an action to recover damages for malicious prosecution. On the 7th day of May, 1903, the' plaintiff entered the employ of the defendants as a traveling salesman of tailors’ trimmings pursuant to a contract in writing of that date, by which defendants agreed to pay him a salary of $2,250 per annum, payable monthly, and he was to bear his own expenses; and if nine per cent of the sales made by him, deducting for goods returned and bad debts, amounted to more than his salary they further agreed to pay him the excess at the end of the year. The agreement was to continue until the thirty-first day of December thereafter, and with the privilege to the defendants to renew it for a year on a basis for compensation therein provided. The plaintiff remained in the employ of the defendants and was not discharged therefrom until on or about the sixteenth day of September thereafter, when, by direction of the defendants, he was arrested by detectives who were members of the department of police of the city of ¡New York on the charge of grand larceny in the second degree, in having stolen and appro- , priated to his own use a trunk and samples, the property of the defendants, of the value of $125. He was held to bail in the sum of $1,000, and detained in custody on account of inability to give bail for a period of six days, when he was duly discharged.
On entering the employ of the defendants plaintiff remained at their place of business in the city of Greater Hew York receiving instructions until the latter part of the month, the precise day not being given, and then, by their direction, he went to Cleveland, O., with a view to selling defendants’ goods in that city. Samples of defendant’s goods were selected and packed in one of their trunks by their direction and sent to the Grand Central station, and a claim check therefor was delivered to plaintiff. Plain
It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.