30 Misc. 758 | N.Y. App. Term. | 1900
The only evidence in the case, that of the plaintiff and her father, clearly established a contract on the part of the defendant to employ the plaintiff for a definite term. At the close of the plaintiff’s case, the justice, disregarding the uncontradicted evidence, dismissed the complaint. In doing this he was in error. The evidence was at least sufficient to call upon the defendant to answer it. The plaintiff’s statement, on cross-examination, that she said to the defendant that he could discharge her if he pleased, must be read in connection with the defendant’s remark, which drew it forth, that she would have to do her work properly or get out. Thus read, it means no more than that he could discharge her if she did not do her work properly. There is no evidence that she failed to do this. The justice granted a judgment dismissing the complaint on the merits. In so doing he exceeded Ms power. Section 1382 of chapter 410 of the Laws of 1882 provides that, where a plaintiff does not prove his cause of action, the judgment must be that the action be dismissed, with costs, without
Judgment reversed and new trial granted, with costs to the appell ant to abide the event.
Present: Truax, P. J., Scott and Dugro, JJ.
Judgment reversed and new trial ordered, with costs to appellant to abide event.