Walter Walls, App’lt, v. Thomas D. Coleman et al., Resp’ts.
(Supreme Court, General Term, Third Department,
Filed November 28, 1890.)
Master and servant—Agreement to withhold part op wages.
An agreement between master and servant that a portion oí the latter’s weekly wages shall be withheld and that the same shall be forfeited if he leaves before the end of the season is not unreasonable.
Appeal from judgment of Albany county court, affirming judgment of city court in favor of defendants.
Action to recover ten dollars, balance of wages for services rendered to defendants, who were copartners in the manufacture and sale of beer.
Defendants admit that the balance of wages unpaid amounts to the sum claimed, but allege that it was forfeited under a general rule made by them and to which plaintiff agreed.
The plaintiff testified; “I went to work; I had been to work two weeks, and on the second pay night I had a conversation with the paymaster; he said he was going to pay at the rate of ten dollars per week, except that he was going to keep one dollar a week back until such time as I finished up; I said all right; he said he would keep one dollar a week back until such time as I finished up the season; I agreed to it.”
*284The plaintiff had some words with the foreman Denis Coleman in reference to the foreman falling down a cat ladder. The plaintiff said he must have been asleep to have fallen down; and the foreman replied “ by the Gods ” he had not fallen down when he was asleep. The plaintiff said he would not be abused, and the foreman replied: “ If that don’t suit you, get out.” He continued to work out the day, when he quit. The next day he called for his pay, and the foreman, and also Mr. T. D. Coleman, said that he had not been discharged.
At the close of plaintiff’s case a nonsuit was granted, and the judgment entered thereon was affirmed by the county court.
A B. Spalding, for appl’t; Thomas A. Meegan and Luden Tuffs, for resp’ts.
Learned, P. J.
This is an appeal from the judgment -of the county court affirming that of the city court of Albany.
The case was tried before one of the justices of that court without a jury, and the plaintiff was nonsuited. As there was no jury, of course the nonsuit is in effect the same as a decision for the defendant on the plaintiff's evidence; unless indeed it is not a bar to another action. That is, the justice who tried the case could pass on the weight of evidence, if necessary so to do.
We see no error in this case.
The plaintiff tries to recover a part of his wages which was withheld until the end of the season under the contract between plaintiff and defendants. The plaintiff left before the end of the season, and he was not discharged. This is evident from the testimony in the case. There is nothing unreasonable in such a contract. It is quite just that the workman shall agree to stay through the season, and that, if he does not, he shall lose' a part of the wages he would otherwise have received.
Judgment of county court affirmed, with costs.
Landon and Mayham, JJ., concur.