Gould v. Lenox Corp. , 55 N.Y.S. 998 ( 1899 )

Hardin, P. J.:

Plaintiff, upon the trial, gave evidence to show that the defendant committed a breach of the contract by declining and refusing to permit the plaintiff to occupy the public dining room, and by requiring and insisting that he and his wife omit to take seats and their meals in the public dining room. The evidence tends to show that the price for the meals in the public dining room was at the rate of nine dollars per week for each person. The evidence also tends tb show that the defendant insisted upon the plaintiff and his wife taking their meals in the “ Ordinary ” with the servants, nurse girls and other employees of the defendant. The evidence tends to show that the price for meals in the Ordinary, which was a room on the side of the building where the nurses and maids of tenants in the building took their meals, as well as the waiters, was three dollars and fifty cents to four dollars per week. There was evidence that there were between forty-five and fifty persons taking their meals in the public dining room, and that there were vacant places in that room which might have been occupied by the plaintiff and his wife, the evidence being that the seating capacity of the public dining room was seventy-eight. The defendant sought to place the plaintiff and his wife in a room that was “ intended to be occupied singly and alone ” on the seventh floor, which room had a door on to the freight elevator only. It was a medium-sized room, in which there was no running water, and off from it was a small closet and one small window looking out right by the side of the house for the freight elevator, and was next to a room used by the waiters for their dressing room and lounging room. “ All the garbage was taken up and down the freight elevator, and the only place for the garbage cans to be put were^* out on that platform, which was a very small platform right here by the freight elevator ; there was a stairway there and all the garbage from the kitchen of the house, for the main dining room, went down this freight elevator.”

There is some evidence tending to show that the room to which the defendant sought to assign the plaintiff and his wife was so-situated that a person could not get from there to the main corridors of the building, and that persons occupying it were obliged to go up stairs to the kitchen or to go down stairs to the rear apartments, and that in going down stairs to the basement they could get to the other floors and hallways to the front of the building.

• We think that the evidence tended to show that the defendant had committed a breach of the contract, and that the plaintiff and his wife were not properly furnished with facilities for taking their meals in the public dining room, and that they were improperly required to take their meals in the “ Ordinary.”

The plaintiff requested the court to direct a verdict in his behalf for the unpaid wages and for the $300 mentioned in the contract. The court declined the request thus made and the plaintiff took an exception.

The counsel for the defendant asked “ to go to the jury on the facts in this case, upon the contract itself, upon the question of damages, upon the question of breach, upon the question of the * * *• right to recover the $300 for the dissolution of the contract on the part of the defendant.” This request was declined, and an exception was taken to the refusal. Thereupon the court directed a verdict in favor of the plaintiff for forty-seven dollars, to which direction the plaintiff excepted.

We think the learned trial judge fell into an error in refusing to submit "the questions of fact, presented by the evidence, to the jury. If the jury, upon the evidence before it, had found that the defendant committed a breach of the contract, as alleged, and as the evidence tended to support, then, in that event, the plaintiff was entitled to recover the unpaid services and the stipulated damages of $300 mentioned in the contract. There was sufficient evidence given upon the trial to have authorized the court to submit the question to the jury as to whether the defendant had not violated its obligations to the plaintiff and thereby given him the right to recover the damages mentioned in the contract. We think there should be a new trial.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.

* Sic.