Studner v. H. & N. Carburetor Co. 230 N.Y. 534

Myron M. Studner, Respondent, v. The H. & N. Carburetor Co., Inc., Appellant.

Contract — breach of contract of employment — sufficiency of evidence to warrant recovery.

Studner v. H. & N. Carburetor Co., Inc., 185 App. Div. 131, affirmed.

(Argued October 13, 1920;

decided November 16, 1920.)

Appeal, by permission, from a judgment, entered December 12, 1918, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a determination of the Appellate Term, reversing a judgment of the City Court of the city of New York, in favor of plaintiff entered upon a verdict and affirmed said City Court judgment. The action was brought to recover damages for a breach of contract of employment; the contract contained this clause: “ If, after thirty days from date we are dissatisfied with your services we will have the option of cancelling this agreement.” In the City Court the trial judge submitted to the jury the issue whether the defendant was in good faith dissatisfied with the plaintiff’s services and discharged him on that account, charging the jury that if such were the case, the plaintiff could not recover. The jury found for the plaintiff, in effect holding that the discharge was not by reason of any dissatisfaction with the plaintiff’s services. The Appellate Term reversed upon the ground that no evidence was introduced to question the genuineness of the defendant’s dissatisfaction. The Appellate Division held that an examination of the record disclosed abundant evidence upon which the jury was authorized to find that the defendant was not dissatisfied with the manner of the plaintiff’s services and did not discharge him for that cause, but discharged him for the reason that the carburetor of which the defendant was the sales manager in Brooklyn was defective and unmarketable.

Millard F. Tompkins for appellant.

Frank Walling and S. Ooodelman for respondent,