30 N.Y.S. 193 | The Superior Court of New York City | 1894
This action is prosecuted for the recovery of $1,295, alleged to have been due from the defendant to the plaintiff at the time of the commencement of this action on January 19, 1887, under a contract of employment between the parties.
The complaint alleges that on September 25, 1886, the plaintiff and defendant entered into a contract in writing, in and by which the defendant employed the plaintiff to perform certain work and services for the defendant, for which the defendant agreed to pay the plaintiff thirty-five dollars a week from September 25,1886, until September 25,1887; that the plaintiff entered upon the performance of the contract, and so continued until January 12, 1887, when he was wrongfully discharged from service by the defendant; that the plaintiff’s wages were paid by the defendant to January 8, 1887, and that by reason of the premises there was at the time of the commencement of the action due from the defendant to the plaintiff $1,295.
The only issuable fact alleged in the complaint denied by the answer is the ■wrongful discharge, and so the allegations of the complaint as to the term for which the plaintiff was hired and the compensation to be paid to him as stated in the complaint must be taken to be true for the purposes of this action. Code Civ. Proc. § 522; Southwick v. First, etc. Bank, 84 N. Y. 420; Arnold v. Angell, 62 id. 508.
At the close of the plaintiff’s case the trial court ruled :
1. That under the complaint it was competent for the plaintiff to recover wages as such which accrued subsequent to the commencement of the action if he was wrongfully discharged, and which was to all intents and purposes holding that upon the wrongful discharge of the plaintiff, assuming it to have been such, future wages to the end of the term became due and payable immediately, and
2. That by the terms of the hiring the plaintiff has the right to continue in the defendant’s service until the defendant should terminate the employment by a notice in writing.
The defendant excepted to these rulings.
The court charged the jury that if the plaintiff is entitled to recover at all, he is entitled to recover wages from January 8 to July 20, 1887. This was also excepted to.
The court was requested by the defendant to charge that if the plaintiff is entitled to recover at all, he can recover only to the time of the commencement of the action. This was refused and exception taken.
I think these rulings were erroneous, and that the exceptions to them are well taken.
It will certainly require no extended argument nor the citation of authority to establish the proposition that where wages are payable by the week and default is made in payment an action can be successfully maintained to recover only
The ruling that the contract of hiring could be terminated by the defendant only by a notice in writing seems also to have been made upon the theory that the plaintiff by virtue of the instrument of October 1, 1886, had acquired such an interest in the property to which his agency related as made such a notice a condition precedent to the right of the defendant ever to regain possession of the property. No such right was asserted by the answer; in law the answer admitted the right of the defendant to resume possession at the end of the year of service, and for that reason the ruling was erroneous. Moreover, no such right is given to the plaintiff, nor is any
But, in any event, the rule applies that the facts admitted by the pleadings must control, and the only fact in dispute under the pleadings is whether the plaintiff was rightfully or wrongfully discharged, and not whether the defendant was guilty of a breach of some contract not set forth in the pleadings.
These views necessitate a reversal of the order and judgment appealed from.
Titus, Oh. J., and Hatch, J., concur in result.
Judgment and order reversed.