56 N.Y. St. Rptr. 281

John Kelly, Resp’t., v. Frank T. Walton, App’lt.

(New York Common Pleas, General Term,

Filed December 4, 1893.)

1. Contract—Services.

Under a contract for services at a specified sum per month with privilege to the employe to leave the employ at any time, a recovery can be had for the exact time worked.

2. Appeal—Conflicting evidence.

The finding of a justice will not be disturbed, simply because there is a conflict of evidence.

Appeal by the defendant from a judgment of the district court in the city of JSTew York, for the eighth judicial district, in favor of the plaintiff.

The opinion states the facts.

Richard J. Morrison, for app’lt; Robert .Goeller, for resp’t.

G-iegerich, J.

This action was brought by the plaintiff to recover eleven and one-half days’ wages alleged to have been earned by him as a waiter in the defendant’s hotel. The defendant, by his answer, interposed a general denial. The principal question litigated upon the trial was, whether or not the plaintiff was hired for a specified period of time. The plaintiff and his witnesses testified that he was not hired for any fixed period, that he could leave the defendant’s employ at any time and that he was entitled to compensation for the exact number of days and hours he worked. The defendant and his witnesses, on the other hand, testified that the plaintiff was hired by the month. The justice reached the conclusion, “ that the waiters in the restaurant were paid at the rate of twenty-seven dollars per month, and that the head waiter could discharge them at any time or hour he saw fit, and the waiters would only be paid for the *282exact time they worked, viz.: so many days and so many hours, as the case might be, and that the waiters could leave at any time of the day or hour of the day they saw fit, and would be paid only for the exact days and hours they worked, at and after the above rate per month.” We think that this conclusion is amply sustained by the evidence.

Inasmuch as the plaintiff could leave the defendant’s employ at any time, the manner and circumstances under which he left it, are, therefore, immaterial upon this appeal.

The only remaining grounds upon which the defendant seeks to reverse the judgment are those involving facts, in respect whereof there is a conflict of evidence. We have repeatedly held that the finding of the justice will not be disturbed simply because there is a conflict of evidence, Lynes v. Hickey, 4 Misc. Rep. (Del.), 522; 54 St. Rep., 120; 24 N. Y. Supp., 731; Weiss v. Strauss, 39 St. Rep., 78 ; 14 N. Y. Supp., 776 ; Dempsey v. Paige, 4 E. D. Smith, 219, and, therefore, we will not interfere with the justice’s determination of the facts herein.

As we are satisfied from a careful consideration of the evidence that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.

Kelly v. Walton
56 N.Y. St. Rptr. 281

Case Details

Kelly v. Walton
Decision Date
Dec 4, 1893

56 N.Y. St. Rptr. 281

New York



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